People v. Keo, B286844
| Court | California Court of Appeals |
| Writing for the Court | FEUER, J. |
| Citation | 40 Cal.App.5th 169,253 Cal.Rptr.3d 57 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. NGOUNSAY KEO, Defendant and Appellant. |
| Docket Number | B286844 |
| Decision Date | 23 September 2019 |
40 Cal.App.5th 169
253 Cal.Rptr.3d 57
The PEOPLE, Plaintiff and Respondent,
v.
NGOUNSAY KEO, Defendant and Appellant.
B286844
Court of Appeal, Second District, Division 7, California.
Filed September 23, 2019
Tanya Dellaca, Universal City, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
FEUER, J.
Ngounsay Keo appeals from a judgment entered after a jury convicted him of the second degree murder of his girlfriend, Karina Duch, the mother of his two sons, 15-year-old S.L. and eight-year-old S.K.1 The jury also found Keo guilty of making a criminal threat on an earlier occasion, and found true the special allegation he used a deadly or dangerous weapon, a knife, in the commission of the murder. Keo contends the trial court erred in admitting statements he made while in custody to a social worker performing an investigation in a dependency proceeding filed with respect to S.L. and S.K. He argues the admission of the statements violated his Fifth and Sixth Amendment rights because the social worker failed to provide a warning under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ( Miranda ) and interviewed him without his attorney present. Keo also asserts his statements were privileged under Welfare and Institutions Code section 355.1, subdivision (f),2 as "testimony" in a dependency
proceeding. He urges us to find the statements were privileged, even if they do
not qualify as testimony, to protect his due process rights because he was forced to choose between protection of his parental interests in the dependency proceeding and his right not to incriminate himself in the criminal case.
We are troubled by the admission of statements Keo made to the social worker without an attorney present while he was in custody. But neither section 355.1, subdivision (f), nor the United States and California Constitutions bar use of the statements in his criminal case. It is up to the Legislature to address in the first instance whether section 355.1, subdivision (f), should be expanded to protect out-of-court statements made by a defendant to a social worker. Unless the Legislature decides as a matter of policy that protection is warranted, it is up to the defendant, with the advice of his or her attorney in either the criminal case or dependency proceeding, to decide whether to discuss the facts of the alleged crime with the social worker, or to wait until the dependency hearing to testify, at which time the statutory privilege would apply. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People’s Case
1. Events leading up to the homicide
Keo and Duch were in a relationship for more than 20 years, although they were never legally married. In early 2016 they lived in a one-bedroom apartment with S.L. and S.K. In 2016 the relationship soured, and Keo became more aggressive toward Duch. Duch began communicating with other men on a "messenger" phone application.
Sometime in February or March 2016 Keo slapped Duch on the face. S.K. was in the room at the time. S.L. was in the living room and heard Keo yelling at Duch in the bedroom, followed by the sound of a slap. When S.L. entered the room to see what had happened, he saw Duch crying and holding her cheek, which was red. S.L. physically restrained Keo to prevent him from harming Duch. Keo was drunk at the time. That same night S.L. was present when Keo threatened Duch, S.L., and S.K., saying, "You’re all worthless and I’ll kill you all and then myself." S.L. was scared. S.K. was not there, but Duch told him about the threat later. On March 30 Duch went to the police station and filed a criminal threats report.
On April 5, 2016, while Keo was at work, Duch took S.L. and S.K. from their apartment, and they went to live in Duch’s family home. That afternoon
Keo came to the family home. He was angry and acted in a threatening manner; he demanded to take the family back to the apartment. Duch and the boys refused, and Keo left. The next day Duch obtained a temporary restraining order against Keo. On April 7 a sheriff’s deputy personally served Keo with the restraining order.
2. The homicide
Despite the restraining order, in August 2016 Duch and S.K. visited Keo, and they went together to watch the Cambodian New Year’s day parade. Keo and Duch watched as S.K. danced in the parade. A few days later, on the morning of August 13, Duch and S.K. went to their former apartment to pick up a note from S.K.’s doctor. Keo was there when they arrived.
Keo told S.K. to go play at his friend’s apartment next door, and S.K. left.
While S.K. was in the neighbors’ apartment, he heard a loud scream from Duch and heard her yell "stop." S.K. asked his friend’s mother, Mariela Melgar, to call 911. Melgar did not call because she did not hear anything. But she took S.K. and her two children to Keo’s apartment on their way to the store. Keo opened the door a little and S.K. asked about his mother. Keo said she was sleeping. Keo went back into the apartment, and Melgar and the children left. When they returned, they again stopped by Keo’s apartment. Keo cracked the door open and said Duch was still sleeping. S.K. and the children returned to Melgar’s apartment to play.
At some point, S.K. returned to Keo’s apartment. He knocked six times, but there was no answer. The door was unlocked, and S.K. entered. He saw Keo lying on the floor in the living room, with his internal organs hanging out of his stomach and blood flowing from his stomach. There was a butcher’s knife by Keo’s side. S.K. was scared and ran back to Melgar’s apartment. Melgar went into Keo’s apartment, saw him with his stomach "sliced open," and called 911.
Long Beach Police Officer Benjamin Cobb arrived at the scene with his partner and saw Keo lying on the floor in a pool of blood with a large kitchen knife in his right hand. Keo was conscious and started swinging the knife. When asked, Keo said Duch was "in the bedroom sleeping." Officer Cobb entered the bedroom and saw Duch with multiple lacerations to her chest and upper torso. She had a large laceration on her stomach and her organs were exposed. Duch was pronounced dead at the scene. An autopsy showed multiple stab wounds to the abdomen, upper chest and lungs, arms, and right hip. The deputy medical examiner opined the wounds were made by an object with a sharp blade, were not self-inflicted, and could have been caused by the knife held by Keo.
Keo was transported to the hospital, where he underwent surgery for his injuries.
3. The dependency investigator’s interview with Keo
On May 11 or 12, 2016, while Keo was in custody recovering in the medical unit of the jail, he was interviewed by Julia Han, a social worker who served as a dependency investigator with the Los Angeles County Department of Children and Family Services (Department).3 Han spoke to Keo using a telephone in an interview room with a glass partition between them. At the time Han spoke with Keo, Han was aware a criminal case was pending and a dependency petition had been filed. Keo had counsel appointed in this case, but not the dependency proceeding.4 Keo was alone, and it is undisputed Han did not
provide a Miranda warning. Han testified her role as a dependency investigator was to investigate a petition filed in dependency court by interviewing all the parties to "gather evidence" and prepare a report to the dependency court. As part of that role, Han assessed the risk to the children and made a recommendation as to whether the parent should retain custody and parental rights over the children. Prior to interviewing Keo, Han called the prosecutor to learn the criminal charges against Keo and the next court date. Han and the prosecutor did not discuss the details of the criminal case, and Han did not tell the prosecutor she was planning to interview Keo.
Although English was not Keo’s native language, Han spoke to him in English, and he responded in English. Keo appeared to understand Han’s questions. At the outset of the meeting, Han read Keo the allegations in the dependency petition, including that he had murdered Duch and endangered S.K., who saw Keo with his injuries. Han then "asked him about the incident." Keo told Han he killed his wife, then tried to kill himself. Keo repeated that S.K. "was not there." He added as to S.K. being present that he would "never do [a] stupid thing like that." According to Han, Keo "said he killed his wife because the wife tried to take his two sons away from him and that his sons are his whole life and his soul and he cannot live without his
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...have also held that child protection service investigators are ordinarily not required to administer Miranda warnings. People v. Keo, 40 Cal.App. 5th 169, 253 Cal.Rptr.3d 57 (2019); State v. Jackson, 116 NE 3d 1240 (Ohio 2018). The state court denied this claim on the merits. Habeas corpus ......
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...that was timely made and so stated as to make clear the specific ground of the objection or motion …." (See People v. Keo (2019) 40 Cal.App.5th 169, 187.) Failure to raise a timely and specific objection forfeits the right to raise that issue on appeal. (See People v. Partida (2005) 37 Cal.......
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People v. Balassa, F073733
...elicited incriminating statements.'" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 66-67; accord, People v. Keo (2019) 40 Cal.App.5th 169, 185.) In this case, defendant does not argue, and the record does not indicate, that the government elicited or attempted to elicit incriminating s......
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Terry v. Vannoy, Civil Action 18-cv-812 SEC P
...have also held that child protection service investigators are ordinarily not required to administer Miranda warnings. People v. Keo, 40 Cal.App. 5th 169, 253 Cal.Rptr.3d 57 (2019); State v. Jackson, 116 NE 3d 1240 (Ohio 2018). The state court denied this claim on the merits. Habeas corpus ......
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People v. Jones, F075895
...of fraud or criminal potential.' " (Id. at p. 6, fn. 2 (dis. opn. of White, J.).) In the very recent case of People v. Keo (2019) 40 Cal.App.5th 169, (Keo), decided after briefing in this case was complete, the court addressed the issue of whether a social worker is acting as a law enforcem......
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People v. Moroyoqui, F079573
...that was timely made and so stated as to make clear the specific ground of the objection or motion …." (See People v. Keo (2019) 40 Cal.App.5th 169, 187.) Failure to raise a timely and specific objection forfeits the right to raise that issue on appeal. (See People v. Partida (2005) 37 Cal.......
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People v. Balassa, F073733
...elicited incriminating statements.'" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 66-67; accord, People v. Keo (2019) 40 Cal.App.5th 169, 185.) In this case, defendant does not argue, and the record does not indicate, that the government elicited or attempted to elicit incriminating s......