People v. Lyu

Decision Date06 June 2017
Docket NumberB272022
PartiesTHE PEOPLE, Plaintiff and Respondent, v. JAE JEONG LYU, Defendant and Appellant.
CourtCalifornia 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA439082)

APPEAL from a judgment of the Superior Court of Los Angeles County, Mildred Escobedo, Judge. Conditionally reversed and remanded with directions.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

A jury convicted Jae Jeong Lyu, a massage therapist, of several crimes arising out of a sexual assault on one of his clients during a massage. The trial court refused to give jury instructions on any lesser included offenses, even though the prosecutor requested instructions on some of them. Because there was substantial evidence to support instructions on lesser included offenses of one of the charges, and because the trial court's failure to give those instructions was not harmless, we conditionally reverse one of the convictions and remand for a possible new trial on that charge, and for resentencing. Otherwise, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND
A. Lyu Assaults His Victim During a Massage

Vanessa S. was a ballet dancer. She rehearsed five days a week for one and a half to three hours. She attended reflexology classes and received massages regularly for sore muscles. One of the massage studios she went to was Seoul Sports Massage, where Lyu gave her two massages.

The first massage was without incident. It was "a standard, typical massage," and when Vanessa left she was fine and "in alignment." The second massage, a week later, was different.

Vanessa returned for the second massage because her back was out of alignment after she attended a sales conference for work. She arrived at Seoul Sports Massage at 7:30 in theevening and, even though it did not appear busy, Lyu asked her to come back in an hour.

When Vanessa returned, Lyu escorted her to a room with doors that swung open and close. Lyu gave her a pair of shorts and a T-shirt to wear. Vanessa changed into the clothes, leaving her bra and thong underwear on underneath. Lyu returned with a tub of hot water for her feet and asked Vanessa to lie down on the table.

Lyu began to massage her upper body, including her head and shoulders, but he left the room several times to answer calls on his cell phone. At one point Vanessa told Lyu her psoas muscle near the intersection of her torso and leg was sore. Lyu began massaging the front of her hips.

Lyu's fingers brushed against an area "farther than most masseuse people do," which caused Vanessa to flinch. Lyu said, "Oh, it looks like your bladder is inflamed," which Vanessa thought was a strange statement to make. Lyu asked Vanessa to turn over and take her shirt off. Lyu watched Vanessa remove her shirt, which she thought was odd because usually massage therapists have their clients remove their shirts while they are face down on the massage table or hold up a towel to block their view. Vanessa turned away to "maintain [her] modesty," and Lyu asked her to take off her shorts. Lyu asked Vanessa to take off her underwear, but she refused. Vanessa lay down on the massage table, face down, and Lyu began to massage her back and spine.

Lyu's hands moved lower, to the upper part of her buttocks and hips, and she "felt his hands start to brush lower into—to the crack part" and "brush down the line and kind of sweep that portion down, which [was] odd." Lyu did this "all the way" downthe line of her buttocks. Vanessa tensed and flinched, and thought, "What are you doing? You are supposed to be doing other stuff."

Lyu asked Vanessa to turn over, and he placed a small hand towel across her breasts. Vanessa thought this "was so weird" because usually massage therapists give their patients full sized towels. Lyu began to massage the front of her hips. He said he was going to use lotion rather than oil because lotion did not leave a residue and he would not have to remove it or wipe it off later. As Lyu massaged her psoas muscle, she began to relax and "tune everything out," and she felt Lyu's fingers go under her underwear and massage her clitoris. She "froze" and thought, "Oh, my God, I don't understand, is this happening or is it? Seriously, is this happening? Did I flirt with him? I thought I came in for a massage. I don't understand. If he is doing this, what else is he going to do to me, right? I don't understand." She was confused and afraid "because if he crossed this boundary, he crossed this ethical boundary, right, and he is touching my genitalia, right, and what else does he not care about?" She was in "a suspended state almost where you don't feel anything." She waved her hands, she said, "No, no, no, no, no, no, no, no, no. I don't want that." Lyu put his fingers in and out of her vagina several times: "They went out and they went in. They went out and they went in. They went out and they went in." Lyu said, "It's good for your circulation." The penetration of her vagina lasted five to 10 seconds.

Lyu moved from the foot of the bed to the right side of the bed and turned Vanessa's body to the right side of the table. He moved her legs to the side, held down her left leg and her right hip with his right arm, opened her legs and held her hips "downwith both of his arms," and put his mouth on her genitalia. Lyu's lips and tongue went into her vagina, and she heard "sucking sounds." Her legs were in "a butterfly position, kind of like a diamond shape," and Lyu had his hands on either side of her hips and legs and was holding them down with force and "pressure" so that she could not close her legs. Vanessa was in shock, and could not move because she was afraid. She was in a "weird state of suspension" where she was unable to move. She thought, "I don't get it. I don't understand it. No, why is this happening? I don't understand." The oral copulation lasted approximately 10 seconds.

Lyu walked around the table to Vanessa's left side, grabbed her left hand, and put it on his erect penis. At this point she "snapped out of it," sat up, and said, "No, no, no, I don't want this." Lyu said, "It is because you are so beautiful," or words to that effect. She said, "We are done. We are done. No more." Lyu left quickly, returned with a warm towel and cleaned off her arms, legs, chest, and breasts, as well as her "genitalia and everywhere his mouth touched." "He spread apart [her] legs and he cleaned all of that." Vanessa was in a daze and kept thinking, "I don't understand what is happening."

Lyu left and Vanessa slowly got off the table and got dressed. She walked through the swinging doors and found the front office was dark and empty. Lyu was standing there and holding something for her to drink. She said, "That was not okay, whatever that was, that was not okay." He said, "Oh, oh, I am so sorry. Next time it won't happen, next time it won't happen." She said, "There's not going to be a next time." She refused the drink and walked to the door, which was locked. She said,"Unlock the door. Let me out." Lyu ran over and unlocked the door. Lyu did not ask her to pay.

Vanessa described the experience to her boyfriend, who suggested she report the incident to the police. She took a shower immediately after she got home, and was unable to sleep. After speaking with a friend, Vanessa told the police what happened. The police took her to a rape treatment center for testing and treatment. The nurse who examined Vanessa found no evidence of physical injuries or of a sexual assault, which is not uncommon in cases of digital penetration, and not surprising in this case because Lyu had used a hot wet towel to clean Vanessa's genital area and she had taken a shower after she returned home.

Vanessa identified Lyu in a six-pack photographic lineup and in court. The prosecution also called a witness under Evidence Code section 1108 to testify about a massage Lyu had given the witness in 2009 where Lyu had inserted his fingers into her vagina.

B. The People Charge Lyu with Four Crimes

The People charged Lyu with three felonies arising out of his assault of Vanessa during the massage, and one misdemeanor involving Lyu's failure to register as a sex offender. In count 1, the People charged Lyu with sexual battery by touching an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse while the victim is unconscious because the perpetrator fraudulently represented the touching served a professional purpose, in violation of PenalCode section 243.4, subdivision (c).1 This count was based on Lyu's touching of Vanessa's vagina and his statement that it was good for her circulation. In count 2, the People charged Lyu with sexual penetration against his victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury, in violation of section 289, subdivision (a)(1)(A). This count of forcible sexual penetration was based on Lyu's penetration of Vanessa's vagina with his finger. In count 3, the People charged Lyu with oral copulation against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury, in violation of section 288a, subdivision (c)(2)(A). This count of forcible oral copulation was based on Lyu's conduct in putting his lips and tongue into...

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