People v. Yang

67 Cal.App.5th 1

281 Cal.Rptr.3d 794

The PEOPLE, Plaintiff and Respondent,

v.KA YANG, Defendant and Appellant.

C080978

Court of Appeal, Third District, California.

Filed July 28, 2021

As Modified on Denial of Rehearing August 24, 2021

Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julia A. Hokans, Clara M. Levers, Deputy Attorney General, for Plaintiff and Respondent.

Duarte, Acting P. J.

This is an excruciatingly tragic case.

A mother of four young children was found guilty by jury of first degree murder and assault on a child resulting in death, after she killed her youngest child and only daughter. There was no dispute that on an otherwise routine afternoon, defendant Ka Yang, while alone with her baby Mirabelle, placed the baby in a microwave oven and operated it for multiple minutes. These actions killed the baby, whom by all accounts was a child Yang cherished.

Defendant told her family and first responders that she did not know how the baby was injured, but she consistently spoke of having suffered a seizure, and guessed that the baby had been injured when dropped on a nearby heater while defendant was incapacitated. Defendant had a history of epilepsy ; her defense at trial, supported in part by expert testimony, was that she killed her daughter while unconscious due to an epileptic seizure.

The prosecution countered defendant's claim of unconsciousness with expert testimony of its own, including testimony regarding postpartum mental disorders and testimony utilizing defendant's privileged psychological records, after an inadvertent disclosure by the trial court allowed the prosecutor to discern these records’ contents midtrial and secure their admission on that basis. Although defendant had not been diagnosed with any postpartum mental disorder, and Mirabelle's pediatrician testified defendant had screened negative for any such disorder, the prosecution relied on this evidence to theorize that defendant was motivated to kill her daughter by hallucinations related to undiagnosed postpartum psychosis.

We conclude the trial court abused its discretion by allowing expert testimony regarding postpartum mental disorders without sufficient factual basis and by subsequently admitting into evidence defendant's psychological records not directly related to any mental condition she had put at issue. Because we cannot conclude these errors were harmless when considered together, we reverse the judgment in its entirety. Accordingly, we do not reach defendant's remaining claims.¹

FACTS AND PROCEEDINGS

In September 2015, an amended information charged defendant with the first degree murder of her infant daughter, Mirabelle ( Pen. Code, § 187, subd. (a) ; count one), and assault on a child resulting in death (id. , § 273ab; count two). It was further alleged defendant personally used a deadly and dangerous weapon, to wit, a microwave, in the commission of the murder as charged in count one. (Id. , § 12022, subd. (b)(1).) The murder was alleged to have occurred on March 17, 2011; defendant first appeared on the charges on June 23, 2011. The case proceeded to trial on August 31, 2015, and defendant was sentenced on December 18, 2015. This timely appeal followed.²

Numerous witnesses testified during trial, including defendant's family members and former coworkers, emergency personnel who responded to the scene, law enforcement officers who interviewed defendant, and expert witnesses who testified about epilepsy, causes of infanticide, postpartum mental disorders, and microwave ovens. We categorize and summarize the relevant testimony here, and add any additional details as necessary to clarify the nature of procedural disputes and the issues on appeal later in our Discussion.

Defendant's Background

Defendant, who was 29 years old at the time of the killing, was born in the United States and is of Hmong descent. She lived in Sacramento with her husband, Chi Lo, their three young sons, then aged four, seven, and eight, and their daughter Mirabelle, who was born on January 22, 2011. Defendant loved her children and took good care of them. She was very happy to have a daughter, and by the family's account she loved and cherished Mirabelle.

Chi's brother, Va Lo, also lived with the family, and defendant's mother, Choua Kue Yang,³ stayed with them periodically. Defendant's relatives lived nearby and helped when needed.

Defendant worked as an office worker while pregnant with Mirabelle, and after Mirabelle's birth she worked at home preparing checks over the Internet for a few hours a day. Chi was a long-haul truck driver; typically he was on the road during the week and at home on weekends, but at times he would be gone for up to 14 days at a time.

Defendant's Seizures

Defendant began having seizures at age 13 or 14 and by the time of the killing had experienced at least 100 and possibly as many as 1000 seizures in her lifetime.She took medication to control her seizures, but she did not believe the medication helped. According to defendant, during her seizures she lost consciousness, fell down, and afterward did not remember what happened.

Defendant's husband Chi had witnessed many of her seizures. In his experience, defendant described seizures as beginning with a "flash" or "flashback." She did not know when she was going to have a seizure and had no memory of what happened during her seizures. She would fall from a standing or seated position, her hands would curl up, her body and extremities would shake, her eyes would roll into her head, and she would drool while making moaning or groaning noises. She bit her tongue 90 percent of the time and sometimes lost bladder control. In Chi's experience, defendant did not walk around or do anything during her seizures, which lasted for at least two to five minutes. After a seizure she had very low energy, was slow to get up, and seemed dazed and confused. Normally she would go somewhere and lie down, and it would take three to four hours to regain her senses.

Defendant's mother Choua testified some of defendant's seizures were more intense than others.⁴ When she had a "fall-down" seizure, she would fall to the ground and shake, clench both fists and bite her tongue. These could last up to 10 minutes. When she came to, she would get up after taking a moment, the amount of time varied. Choua would help her to her room, and she was back to normal after sleeping for 30 to 60 minutes.

Other witnesses to defendant's seizures noted that defendant often appeared weak, confused, disoriented, or exhausted after a seizure. During that time, she could not follow simple commands and she could not have completed any complicated task such as working on a computer or driving. She would gradually regain consciousness; her recovery time appeared to depend on the severity of the seizure. Three witnesses who had observed defendant's seizures testified defendant sometimes tried to sit up or get up soon after suffering a seizure, but those who witnessed the seizure would tell her to stay down. One witness testified paramedics arrived "probably four or five minutes" after defendant had a seizure on the occasion the witness observed; defendant was able to answer their questions but did not understand why the paramedics were there.

Defendant's sister-in-law testified defendant's seizures were not always the same. She observed defendant have two seizures that caused her to fall to the ground, clench her fists, and shake for two to three minutes. But she also observed one instance in which defendant was sitting on her couch when her face went blank, and she looked dazed for about a minute. When she regained her senses, she did not remember what they were talking about.

Defendant's brother, Kao Yang, also testified defendant's seizures varied widely. Sometimes her seizures would cause her to fall down and shake, but sometimes she would "just kind of blank out for several minutes." During those "fast seizure[s]," she would stiffen up and shake, but not fall, due to how she was positioned on a bed or couch. She would usually get up a minute or so, or up to five or 10 minutes, after the seizure was over, but sometimes Kao would tell her to sit down because she was "woozy" as she walked, "like, she's not there." Other times she would get up and "you can't really tell." She would not perform any automatic acts. Sometimes she would stay on the couch, and sometimes she would walk into a bedroom. It generally took some time before defendant was conscious and alert again. In neither instance would defendant remember what had happened.

Defendant was involved in two car crashes due to her seizures, the most recent of which occurred only a week before Mirabelle's death. She recalled having a "flashback" while driving, before awakening in the hospital. She described the flashback as: "Um, I had like, you know, you see a person right in front of you." She could not describe the person.

Mirabelle's Death

March 17, 2011, began normally. Chi was out of town working. Choua arrived late the previous evening to help defendant care for Mirabelle, because defendant needed time to apply for public benefits that afternoon. Defendant fed Mirabelle at approximately 5:00 a.m.⁵ Defendant accessed a check on the Internet for her job at 6:00 a.m. She and Mirabelle got out of bed at approximately 7:00 to 7:30 a.m., and she changed Mirabelle's diaper because the baby was crying. Defendant brought Mirabelle to Choua so she could run an errand. When she returned home, defendant yelled at the boys to quit playing video games and get ready for school.

Choua walked the two older boys to school and worked in the yard upon returning home. Defendant prepared food for her youngest son. Choua came inside at 10:00 a.m. and changed Mirabelle's diaper. Defendant's youngest son played with...