People v. Moua

THE PEOPLE, Plaintiff and Respondent, v. FONG MOUA, Defendant and Appellant.

C092603

California Court of Appeals, Third District, Sacramento

June 24, 2022

NOT TO BE PUBLISHED

Super Ct. No. 19FE017568

ROBIE ACTING P. J.

A jury found defendant Fong Moua guilty of 12 counts of lewd or lascivious acts on a child, involving six victims. Defendant was sentenced to 238 years to life in state prison.

On appeal, defendant contends the trial court erred by: (1) denying his motion to dismiss for violation of his right to a speedy trial; (2) admitting evidence of uncharged sexual offenses; and (3) admitting expert testimony on the child sexual abuse accommodation syndrome (the syndrome). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I

The Crimes ^[1]

Defendant and Lor were in a long-term relationship. Between the two were several children, including daughters Mindy, Pangfoua and Isabella; and sons Xou and Leng. When Mindy was in the fifth or sixth grade, defendant began touching her. He would come to her bedroom at night and touch her breasts under her clothes and touch her vagina over and under her clothes. Mindy shared a bed with Pangfoua, and Xou was in the room in his own bed. Mindy did not recall the number of times defendant touched her breasts, but it was more than once. Defendant touched Mindy's vagina "a lot." Mindy did not tell her mother because she was afraid of defendant and ashamed. Mindy did not know if her mother would believe her. Mindy never told her siblings, including Pangfoua, who never woke up during the abuse.

One time, Mindy woke up while defendant was touching her. She turned on the light and asked what defendant was doing. Defendant said he was looking for something. Mindy told him there was nothing to look for and to get out of her room. Mindy would also lock the door to keep defendant out of her bedroom. Defendant kept touching Mindy until she was 17 or 18 years old. From when Mindy was nine until she was 13 defendant touched Mindy four or five times a week. When Mindy was 12 or 13, defendant touched Mindy on her breasts and vagina a couple of times when she was asleep on the couch.

Pangfoua was nine the first time defendant touched her inappropriately. The first time was when defendant was taking Pangfoua and Mindy to school. Defendant dropped off Mindy and told Pangfoua he was taking her to McDonald's. Instead defendant took her to the American River and "parked out in the middle of nowhere." Pangfoua was sitting in the back seat and defendant came around the car and opened her door. He touched Pangfoua's feet and up her bare leg toward her thigh. Defendant told Pangfoua to be quiet. Pangfoua screamed at him to stop and take her back, and defendant did. Other times when defendant was driving the car, he would reach over to the back seat and try to touch Pangfoua's leg and pull her closer. Defendant was never able to touch her vaginal area during these interactions.

At night when Pangfoua was sharing a bed with Mindy, there were times when defendant would come into the room and lift the blanket and touch her feet, causing Pangfoua to wake up. Pangfoua would ask defendant what he was doing and defendant would say he was looking for stuff. Pangfoua did not recall Mindy ever waking up.

Another time, when Pangfoua was about 13 years old, she was playing hide-and-seek at defendant's sister's house with defendant's niece. Defendant told Pangfoua to lay on a bed with him, to be quiet, and that everything would be okay if she did not tell anyone. He closed the door to the bedroom, got on the bed with Pangfoua, and put a blanket over them. Defendant told Pangfoua to turn sideways, so his front was to her back. Defendant pulled down Pangfoua's pants and underwear and put his penis inside her vagina. It hurt. When defendant stopped, Pangfoua ran to the bathroom, closed the door, and wiped herself. There was blood. Pangfoua came out and went back to playing with defendant's niece like everything was normal.

After that, Pangfoua did not feel safe in the house with defendant and left to live with her boyfriend Daivi. At times, Pangfoua would still go back and stay overnight at her mother's house. One time when Pangfoua was 16, Daivi dropped her off to visit her mother and she slept over. She was asleep in a bedroom and defendant came in and rubbed her vagina on top of her clothes. Pangfoua woke up and screamed. Her brother Leng was in the kitchen and he asked her what happened. Pangfoua told him that defendant touched her. Leng said he did not believe her. Pangfoua never told anyone else about defendant's conduct. When she was nine, defendant told her not to tell her mother, and if Pangfoua did, she would get in trouble. Pangfoua felt disgusted and scared.

Pangchan dated Xou starting when the two were in high school. When she went over to visit, defendant was there. Once when she was sleeping in the living room with Xou, in the middle of the night, Pangchan woke up and felt defendant rubbing her vaginal area. Pangchan saw defendant's face when he pulled away because of the light by the stairs. Defendant's hand was under the covers and over Pangchan's clothes. Pangchan was scared and crying. She told Xou, who got angry, but Pangchan told him not to say anything and they went back to sleep. Pangchan did not want Xou to say anything because she was ashamed and embarrassed. She was afraid people would say it was her fault. Xou did not tell anyone because Pangchan told him not to. Pangchan did not tell anyone. Another time, Pangchan and Xou fell asleep during the day watching television. She woke up to someone touching her breast. She did not see defendant's face but knew it was him because of prior conduct. She did not tell anyone.

When Isabella, who was several years younger than her sisters, was in the fourth or fifth grade, defendant, her father, started touching her inappropriately. He did this until she was in the seventh or eighth grade. Defendant started by giving her massages in his and Lor's bed and then he would touch her inappropriately. Sometimes Isabella would fall asleep watching television in her parent's bed and later wake up to her father putting his hand under the covers to touch and rub her "butt," "inner thighs," and vagina under her shorts. Defendant would grab Isabella's legs and thighs and then go inside her with his fingers, which hurt. Isabella would tell defendant to stop and he would. He never said anything. Sometimes this would happen on the couch in the living room, when Isabella would fall asleep watching television. In total, this happened more than six times but less than 10 times.

Several years passed. Pangchan married Xou and Pangfoua married Daivi, and each couple had children. Pangchan and Xou lived with defendant and Lor, as did Isabella and Mindy, who had daughter J. Although Mindy and defendant did not fight, they were not close. Mindy was not happy that defendant did not pay rent, and she and her siblings wanted him to work so he would pay for living expenses like everyone else, but defendant refused. Mindy and Pangfoua also knew defendant had cheated on their mother in the last several years, likely giving her a sexually transmitted disease.

Many of the grandchildren, in addition to Pangchan's niece, A., came to the house to visit with Lor and defendant. Defendant would often take the grandchildren to McDonald's and the park and pick them up from school.

In early August 2019, Isabella told Pangfoua defendant had touched her inappropriately. This caused Pangfoua to call Mindy and Pangchan and have a meeting with Lor about defendant's conduct. All four women told Lor defendant had touched them inappropriately when they were young. Lor was shocked.

The interaction caused Mindy to talk with her daughter J. Mindy asked J. if anybody had touched her or done something bad to her. J. at first denied it, but after two or three times of questioning, she admitted defendant had touched her while Mindy was at work and she was watching television with defendant in his room. At first, J. said defendant had touched her one time. After Mindy questioned her a second and third time, J. said defendant had a touched her "[a] lot of times." J. said defendant had touched her "[d]own there." J. never told Mindy because defendant told her not to and, if J. told Mindy, J. would get in trouble and Mindy would yell at her.

The meeting also caused Pangchan to ask her six-year-old niece A. if defendant had touched her. In a telephone call, A. initially said he did not, and then said defendant holds her hands. A. said she was scared that Pangchan would be angry with her; Pangchan told A. she wanted to know the truth. When Pangchan saw A. the next day, she asked where defendant touched her, and A. pointed to her private area. A. said it happened when defendant took the children to the park. A. later told her mother about defendant's conduct. At trial A. testified defendant touched her "pee-pee" and her butt outside of her clothes when they went to a park. Defendant's conduct made A. "mad" and she told defendant to stop.

II

Pretrial Proceedings

A Motion To Dismiss

In 2019, the prosecution filed a complaint against defendant after which he was arraigned and held to answer on all charges after a preliminary hearing, and he entered a not guilty plea. On February 20, 2020, defendant waived time for trial, a trial readiness conference was scheduled, and March 26, 2020, was set as the date for the commencement of a jury trial. Thereafter, the Governor's declaration of an emergency due to the COVID-19 pandemic and emergency orders issued by the Governor, Chief Justice Tani Cantil-Sakauye as Chairperson of the Judicial Council and the Presiding Judge of the Sacramento County...