Filed 6/18/21 P. v. Pangan CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

RAMIL MAGLAQUI PANGAN,

Defendant and Appellant.

 B302799

 (Los Angeles County

 Super. Ct. No. VA146467)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Raul A. Sahagun, Judge. Reversed and 

remanded.

Tracy A. Rogers, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Julie L. Garland, Assistant Attorney 

General, Eric A. Swenson and Heather M. Clark, Deputy

Attorneys General, for Plaintiff and Respondent.

_______________________
2

Ramil Maglaqui Pangan appeals from his judgment of 

conviction of sexual penetration of an unconscious person (Pen. 

Code,

1 § 289, subd. (d)) and attempted oral copulation of an 

unconscious person (§§ 664, subd. (a), 288a, subd. (f)). Pangan 

was convicted of the offenses at a second trial after the jury at 

the first trial was unable to reach a verdict. On retrial, the 

prosecution relied on evidence showing that, when confronted 

with the allegation that he had sexually assaulted the victim, 

Pangan did not deny it, but rather apologized to the victim for his 

conduct. On appeal, Pangan contends the trial court erroneously 

excluded proffered defense evidence that (1) Pangan said to call 

the police and have the victim examined by a doctor when he was 

first told of the allegation, and (2) Pangan’s wife directed him to 

apologize to the victim even if he was not guilty. The evidence of 

the wife’s complete statement to apologize was admitted at the 

first trial, but excluded at the second. We conclude the trial court 

erred in excluding the proffered evidence, and the error was not 

harmless. We accordingly reverse and remand for a new trial. 

1 All further statutory references are to the Penal Code

unless otherwise indicated.
3

FACTUAL AND PROCEDURAL BACKGROUND2

The Prosecution Case

Pangan and Vanessa D., the victim in this case, were part 

of a close-knit group of friends. Vanessa D. met Pangan through 

her boyfriend, Carlos C., who worked at a restaurant where 

Pangan was the head chef and Pangan’s wife, Johanna Pangan,

3

was the manager. Stephen C., Emily B., and a man named R.J. 

also worked at the restaurant. The group regularly socialized 

together outside of work, often at the Pangan residence. Vanessa 

D. and Carlos C. were particularly close to the Pangans and 

visited their home several nights a week. On other occasions,

Carlos C. would drop Vanessa D. off at the Pangan residence in 

the morning, and Pangan would drive her to her workplace in the 

afternoon. Vanessa D. regarded Pangan and Johanna as her 

second family.

The Pangan residence was a three-bedroom home. Pangan, 

Johanna, and their three children occupied one bedroom. R.J. 

and Pangan’s older uncle shared another room, and a couple with 

a daughter rented the third room. The residence also had a 

converted garage where the men would sometimes congregate to

drink.

2 The factual and procedural background is taken from the 

record of Pangan’s second trial. 

3 We refer to Johanna Pangan by her first name for the 

sake of clarity; we intend no disrespect.
4

On the night of July 30, 2017, Vanessa D. and Carlos C. 

went to the Pangan residence after work. Vanessa D. was about

22 years old at the time. When Vanessa D. and Carlos C. arrived

at the residence, they watched television in the living room with 

Johanna, Emily B., and the Pangan children. After Pangan and 

Stephen C. arrived from work, the group went to the store and 

bought a bottle of whiskey. At some point, Carlos C. left and 

went to his mother’s house to play mahjong with his brother and 

R.J. Pangan, Johanna, Stephen C., and Vanessa D. went to the 

garage to drink. Vanessa D. drank two to four shots of whiskey

that night. She felt tipsy but not drunk. She was wearing denim 

shorts and a sleeveless shirt with a long cardigan sweater. 

Pangan was wearing a blue shirt. 

Around 1:00 a.m., Vanessa D. left the garage and lay down 

on a couch in the living room. She covered herself with a blanket

and checked her cell phone before falling asleep. Johanna joined 

Vanessa D. in the living room and slept on another couch about

six feet away. The room was dark except for the light emanating

from an aquarium near where Vanessa D. was sleeping.

In the early morning hours, Vanessa D. was awakened by a 

sharp pain in her vagina. She noticed her blanket had been 

moved, and her shorts and underwear had been pushed to the 

side. Pangan was sitting on the couch near her feet. He had on 

the same blue shirt he had been wearing earlier that night.

Vanessa D. felt Pangan’s fingers inside her vagina. She then saw 

Pangan “lick” her vaginal area. Pangan next touched her breast 

over her clothing and kissed her mouth. He then covered her 

with the blanket. Vanessa D. rolled onto her side with her face 
5

toward the couch and began to cry. She could not speak because 

she was in shock and disbelief about what Pangan had done.

A short time later, Carlos C. and R.J. arrived back at the 

Pangan residence. Vanessa D. was still lying on the couch in the 

living room, and she was startled when Carlos C. touched her 

shoulder to take her home. As Carlos C. was driving them to 

their home, Vanessa D. started to cry. She asked Carlos C., “Was 

it you?”4 Because Vanessa D. continued to sob and seemed 

afraid, Carlos C. knew something was wrong and began driving

back to the Pangan residence. After Carlos C. repeatedly asked 

her what happened, Vanessa D. told him that Pangan had 

touched her.

When they arrived at the Pangan residence, Carlos C. and 

Vanessa D. remained in the car. Carlos C. first called R.J. and 

asked him to come outside. After telling R.J. what had happened 

to Vanessa D., Carlos C. asked R.J. to get Johanna. When 

Johanna came outside, she sat in the car behind Vanessa D. 

While crying, Vanessa D. told Johanna that Pangan had 

“fingered” her vagina. Johanna also started to cry. She asked 

Vanessa D. if she was sure it was Pangan, and not one of her

children or Pangan’s uncle. When Vanessa D. confirmed she saw

Pangan’s face, Johanna left the car crying and went to find 

Pangan. After Johanna left, Stephen C. came outside, and there 

4 At trial, Vanessa D. testified that when she asked 

Carlos C. this question, she was remembering her assailant’s 

blue shirt, which caused her to think Carlos C.’s shirt was blue 

even though it was actually gray. Vanessa D. explained that, in 

that moment, she could not accept that anyone else would have 

touched her body. 
6

was a discussion about whether to call the police. While 

Carlos C. and R.J. wanted to report the incident to the police

immediately, Stephen C. asked Vanessa D. not to do so. At that 

time, Vanessa D. did not want to involve the police because she 

was concerned about the possible immigration consequences for 

the Pangan children.

At Stephen C.’s suggestion, Carlos C. and Vanessa D. spent 

the next few days at his residence. Although Stephen C. told 

them he would help them file a police report, he also asked 

Vanessa D. to talk to Johanna before taking any action. About 

two days after the incident, Johanna met with Vanessa D. at 

Stephen C.’s house. When Vanessa D. told Johanna that she 

intended to report the incident, Johanna replied, “Okay, then go, 

Vanessa. Whatever your decision is, there is really nothing that 

we can do about it.” After talking with Vanessa D., Johanna 

assured Carlos C. she would support them if they decided to 

contact the police. Johanna also hugged Carlos C. and asked for 

his forgiveness. 

Over the next few days, Vanessa D. was too distraught to 

eat, sleep, or work. Later that week, she attended a local fair 

with Carlos C., Johanna, Stephen C., and Emily B. Although 

Vanessa D. was hoping to return to a sense of normalcy, she 

realized she could not because of what Pangan had done to her. 

About one to two weeks after the incident, Vanessa D. went to 

the hospital to see if she could undergo a sexual assault exam. 

She was told, however, that an exam would not provide evidence 

of a sexual assault after a 24-hour period. While at the hospital, 

Vanessa D. met with a sheriff’s deputy and reported the sexual 

assault at that time. 
7

On August 5, 2017, prior to Vanessa D.’s police report, 

Pangan sent her a Snapchat message, stating, “Vane I’m sorry 

already I’m begging you please have pity on me and on my kids I 

wish I could be the one to take the punishment I’ll do anything 

please I really didn’t mean it about what happened . . . just 

please . . . I’m just going to leave here or if you want me to 

disappear from this earth Please vane Have pity on me Please 

allow me first to say goodbye to them please.” Vanessa D.

showed the message to Carlos C., who took a screenshot of it with 

his cell phone. While Vanessa D. did not respond to the message, 

she remained worried that the Pangan children could be deported 

if she contacted the police.

At some point before Vanessa D. reported the incident to 

the police, Stephen C. and Emily B. arranged for Carlos C. and 

Pangan to meet at the Pangan residence. Johanna, Stephen C., 

and Emily B. were also present at the meeting. Pangan 

apologized to Carlos C. and asked for his forgiveness. He said he 

should be given a chance to change because of his children. He 

urged Carlos C. to physically hurt him rather than file a police 

report, and stated he would not fight back. When Carlos C. left 

the meeting, Pangan ran after him and continued to apologize. 

Pangan also offered to pay Vanessa D. the amount of her salary 

while she was unable to work. 

On September 20, 2017, after Vanessa D. reported the 

incident, the police arranged for her to conduct a pretext call 

with Pangan. During the call, Vanessa D. told Pangan she 

had been to counseling. She said she wanted peace of mind,

and wanted to ask him about what he “almost did to” her. 

Pangan responded, “I really can’t, you know, Vane, what I really 
8

did. No, I really don’t know what, so. . . .” Vanessa D. told 

Pangan that she saw him that night, and that he “fingered” and 

“licked” her “private part” while she was asleep. Pangan replied,

“That’s why if I had done that, I’m really sorry and I’m begging 

you.” When Vanessa D. reminded Pangan that Carlos C. was his 

friend, Pangan stated, “I guess I was just carried away by . . . I 

really didn’t, I really didn’t mean to do it, if I had done that. 

That’s why it’s also difficult for me to . . . . That’s why now. . . .” 

Pangan continued, “I can’t for the life of me figure out why it 

happened. That’s why I’m thinking I no longer want to be, you 

know, if that’s what I have done. So now even [Johanna] and I 

might separate because it’s not. . . I don’t want to, you know . . . I 

might also leave California because there is . . . again, I’m, you 

know, that’s why . . . . I don’t know if I’m going back to the 

Philippines or what. If I had done that, please forgive me. I 

really can’t fully figure out, you know . . . that’s why I’m sorry 

for that. I’m really, really, really sorry.”

Vanessa D. told Pangan that she thought of him as her 

family, and she could no longer work because she felt so 

miserable. Pangan again apologized, stating, “That’s why I’m 

really sorry if, you know . . . That’s all I can really do right now. 

I also miss all of you, our, you know. . . I thought, ‘Why so?’ 

Maybe it’s just because of, you know . . . but I really didn’t mean 

to do it, if I had done that. I also really want, you know, peace of 

mind. And now there’s another one. That’s why I told [Johanna], 

Maybe I just really need to leave all of you for now. I’m also 

becoming, you know. Maybe I’ve really become . . . bad or 

something. I don’t know.” Later in the conversation, Pangan 

added, “I knew it was bad, but I did it anyway. I really cannot 

accept it. I’m also suffering. I also don’t want, you know. . . . I 
9

also really don’t know. That’s why when I talked to [Carlos C.] I 

told him, Do it to me, do whatever you want to do to me, because 

I’m also suffering.” When Vanessa D. stated that she was

“suffering more,” Pangan replied, “So it is.”

The Defense Case

Johanna, Stephen C., and Emily B. testified for the 

defense. On the night of July 30, 2017, Vanessa D. poured shots 

of whiskey for the group of friends gathered in the garage, and 

they each took turns drinking shots. Vanessa D. consumed five 

to six shots. Emily B. was in the living room when Vanessa D.

and Johanna came inside. Vanessa D. asked Emily B. why she 

had not joined the group, and then added, “Look now, we are 

drunk.” Emily B. left the Pangan residence shortly after she 

spoke with Vanessa D. She noticed Vanessa D. was wearing 

“very tight” mid-thigh jean shorts, which were different from the 

shorts that Vanessa D. had testified she was wearing that night. 

On the night of July 30, Pangan was wearing a blue shirt. 

Johanna recalled that Pangan’s uncle was also present in the 

home that night and wearing a blue shirt. Early the next 

morning, Johanna was awakened by R.J. When Johanna came 

outside, Vanessa D. was crying. Carlos C. spoke first and said 

that someone had “fingered” Vanessa D. He asked Vanessa D. to 

tell Johanna who had done so. When Vanessa D. did not initially 

respond, Johanna asked, “Was it my children?” Vanessa D.

continued to cry as she told Johanna that it was Pangan. 

Johanna also began to cry. She got out of the car and went to the 

garage to “confront” Pangan. Johanna later told Pangan to “ask 

for forgiveness.”

On the morning of July 31, Stephen C. was awakened when 

Johanna came into the garage. He then went outside to talk to 
10

Carlos C. and Vanessa D. Because Vanessa D. was crying and 

wanted to leave, Stephen C. said they should go home, rest, and 

talk again later. Later that morning, Stephen C. saw Pangan’s 

uncle leave for work, and he noticed the uncle was wearing a blue 

shirt. Stephen C. invited Carlos C. and Vanessa D. to his 

residence that afternoon so that they could relax and think about 

what they wanted to do. He never suggested that they should not 

report the incident to the police. During the meeting between 

Carlos C. and Pangan about the incident, Stephen C. told Pangan 

to talk to Carlos C. and “just apologize.” 

Both Stephen C. and Emily B. testified they had never seen 

Pangan mistreat women or display a sexual interest in 

Vanessa D. Johanna testified that, prior to the incident,

Vanessa D. would spend time alone with Pangan in the family’s

residence, and she never complained about Pangan making 

unwanted sexual advances toward her. 

Jury Verdict and Sentencing

At the first trial, the jury was deadlocked seven to five in 

favor of Pangan’s guilt, and the court declared a mistrial. At the 

second trial, the jury found Pangan guilty of sexual penetration 

of an unconscious person (§ 289, subd. (d)) and attempted oral 

copulation of an unconscious person (§§ 664, subd. (a), 288a, 

subd. (f)). The trial court sentenced Pangan to a term of three 

years on the sexual penetration count and a concurrent term of 

18 months on the attempted oral copulation count. The court

also imposed a $300 restitution fine (§ 1202.4, subd. (b)), an $80 

court operations assessment (§ 1465.8), a $60 criminal conviction 

assessment (Gov. Code, § 70373), and a $300 sex offender fine 

with penalty assessments and a 20 percent surcharge (§ 290.3).

Pangan timely appealed.
11

DISCUSSION

On appeal, Pangan challenges two of the trial court’s 

evidentiary rulings. First, Pangan contends the court erred in 

excluding testimony that, when Johanna first confronted him

with Vanessa D.’s sexual assault allegation, Pangan said to call 

the police and have Vanessa D. examined by a doctor. Second, 

Pangan asserts the court erred in excluding testimony that

Johanna told him to apologize even if he did not commit the 

sexual assault to avoid the involvement of the police and the 

potential impact on their children. Pangan argues the proffered 

testimony should have been admitted because it was not hearsay,

and it was relevant to showing that his subsequent apologies

were not admissions of guilt. In addition to these evidentiary 

error claims, Pangan contends the trial court erred in imposing 

various fines and fees at sentencing without determining his 

ability to pay. 

Exclusion of Pangan’s Statement to Call the Police 

and Have Vanessa D. Examined by a Doctor

We first consider the admissibility of Pangan’s statement 

to call the police and have Vanessa D. examined by a doctor when 

Johanna confronted him with the sexual assault allegation the 

morning of the incident. We conclude the trial court erred in 

excluding the proffered testimony because it was not hearsay, 

and it was relevant to refuting the People’s theory that Pangan 

failed to deny the allegation when he was confronted with it.

At trial, the defense sought to elicit testimony from both 

Stephen C. and Johanna that, when Johanna first confronted 
12

Pangan in the garage the morning of the incident, Pangan

initially responded to Vanessa D.’s sexual assault allegation by 

stating “call the cops, have her checked out by a doctor.” 

The prosecutor first objected to this line of questioning on 

hearsay grounds during Stephen C.’s testimony, and the trial 

court sustained the objection. In a sidebar conference, the court 

rejected defense counsel’s argument that the proffered evidence

was admissible to show Pangan’s then-existing state of mind. 

The court stated that “his proclamation that he is innocent or [he]

thought that he’s innocent is still . . . a declaration by him, which 

can be offered by an adverse party, but not by him.” The court 

also noted that the statement must be relevant to be admissible, 

and that “the only relevance of [Pangan’s] state of mind that he 

believes he’s not guilty is that he’s not guilty.” Defense counsel 

argued the statement was not hearsay because it was not being

offered to prove that Pangan actually “wanted [Vanessa D.] to 

go to the cops to be checked out.” The court replied, “The gist 

of that conduct is that he wanted her to do things that [are] 

consistent with him being innocent. He’s saying, ‘I didn’t do it’ 

because nobody in their right mind would tell a victim to go to 

the cops if they thought they were guilty.”

When Stephen C.’s testimony resumed, the trial court 

permitted defense counsel to ask whether Johanna confronted 

Pangan the morning of the incident and what her demeanor was 

at the time. The court did not allow counsel to ask Stephen C. 

what was said during that confrontation.

During Johanna’s testimony, the trial court again 

considered the admissibility of Pangan’s statement about calling 

the police and having Vanessa D. medically examined. Defense

counsel argued the statement was not hearsay because it was
13

circumstantial evidence of Pangan’s state of mind. While the 

court agreed the statement was evidence of Pangan’s state of

mind, it noted that his state of mind “is irrelevant.” The court 

explained, “Whether he believes he is guilty or not is of no 

moment and that’s what the evidence is. . . . It is circumstantial 

evidence [of] his state of mind and his state of mind being that he 

is innocent, that he didn’t do it, whether he believes he is 

innocent or not, is just not relevant.” The court ruled that 

defense counsel could elicit testimony from Johanna that she 

confronted Pangan, but not Pangan’s response. 

When Johanna’s testimony resumed, defense counsel asked

her, “Did you confront—yes or no, did you confront [Pangan] with 

what you heard?” Johanna answered, “Yes, sir.” On crossexamination, the prosecutor asked Johanna whether it was true 

that she “didn’t want the police coming to [her] house.” Johanna 

responded that she did not want “that to happen because of the 

children, but on that night, [Pangan] told [her], why don’t you 

call the police.” The prosecutor objected to Johanna’s response, 

and the trial court sustained the objection “as to what [Pangan] 

told her.” 

Pangan argues the trial court erred in excluding his 

statement to Johanna to “call the cops, have [Vanessa D.] 

checked out by a doctor” because it was not hearsay, but rather 

was a request or command that was not offered to prove the truth 

of the matter asserted. Pangan also contends the statement was 

relevant to demonstrating his consciousness of innocence because 

a guilty person would not have responded to a sexual assault 
14

allegation by suggesting that the victim’s claim should be 

investigated. The People argue the trial court properly excluded 

the statement as inadmissible hearsay because it contained an 

implied assertion of fact that Pangan did not commit the sexual 

assault. The People further assert that, even if the statement 

was nonhearsay, the trial court did not abuse its discretion in 

excluding it because any slight probative value of the statement

was substantially outweighed by the potential for prejudice.

5

“We review evidentiary rulings, including ultimate rulings 

on whether evidence should be excluded as hearsay, for abuse of 

discretion.” (People v. Caro (2019) 7 Cal.5th 463, 503.) Hearsay 

is “evidence of a statement that was made other than by a 

witness while testifying at the hearing and that is offered to 

prove the truth of the matter stated.” (Evid. Code, § 1200, 

subd. (a).) Unless subject to an exception, hearsay evidence 

is inadmissible. (Id., subd. (b).) 

A request or command generally is “not hearsay, but 

‘simply verbal conduct’ consisting of a proposal to perform an 

5 In addition to arguing that the trial court’s ruling was 

correct on the merits, the People contend that Pangan forfeited 

his claim that the statement did not assert the truth of any fact 

because he failed to raise this argument in the trial court. We 

disagree. At trial, defense counsel argued that the statement was 

not hearsay because it was not being offered to prove the truth of 

the matter asserted. This was sufficient to preserve Pangan’s 

claim that the statement did not assert the truth of any fact 

within the meaning of the hearsay rule. (See People v. Partida

(2005) 37 Cal.4th 428, 436 [as “a general matter, no useful 

purpose is served by declining to consider on appeal a claim 

that merely restates, under alternative legal principles, a claim 

otherwise identical to one that was properly preserved”].) 
15

act.” (People v. Cowan (2010) 50 Cal.4th 401, 472.) As our 

Supreme Court has explained, we “have often characterized 

commands not as hearsay but rather as ‘simply verbal conduct 

consisting of a directive that was neither inherently true nor 

false.’ ” (People v. Clark (2016) 63 Cal.4th 522, 592; see People 

v. Curl (2009) 46 Cal.4th 339, 362 [instruction to get rid of a pair 

of boots “was not hearsay but simply verbal conduct consisting of 

a directive that was neither inherently true nor false”]; People v. 

Jurado (2006) 38 Cal.4th 72, 117 [“request for the gun, by itself, 

was not hearsay”].) “Because a request, by itself, does not assert 

the truth of any fact, it cannot be offered to prove the truth of the 

matter stated.” (Jurado, at p. 117.)

A statement which does not directly declare a mental or 

emotional state but is merely circumstantial evidence of the 

declarant’s then existing state of mind, is also not hearsay. 

(People v. Dalton (2019) 7 Cal.5th 166, 232; People v. Cox (2003) 

30 Cal.4th 916, 962, disapproved on another ground in People v. 

Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Such evidence “ ‘is not 

received for the truth of the matter stated, but rather whether 

the statement is true or not, the fact such statement was made 

is relevant to a determination of the declarant’s state of mind.’ ” 

(Cox, at p. 962.) Circumstantial evidence of a declarant’s state 

of mind can be offered for the nonhearsay purpose of showing

consciousness of innocence or guilt. (People v. Cowan, supra, 

50 Cal.4th at p. 472; People v. Curl, supra, 46 Cal.4th at p. 362.)6 

6 “[C]ase law . . . [citation], describes two different theories 

under which statements of a declarant’s present state of mind 

can be admitted: (1) as hearsay under the Evidence Code section 

1250 exception for the declarant’s present state of mind, and 

(2) as nonhearsay circumstantial evidence of a declarant’s state of 
16

On the issue of whether Pangan’s statement constituted 

inadmissible hearsay, People v. Cowan, supra, 50 Cal.4th 401,

is particularly instructive. In Cowan, defense counsel sought to 

introduce evidence that the defendant had offered to “ ‘come down 

right now’ ” to speak with a detective about a murder case in 

which he was a prime suspect. (Id. at p. 472.) The trial court 

excluded the evidence on the ground that it was not probative of 

the defendant’s state of mind at the time of the murders and was 

therefore not relevant. (Ibid.) On appeal, the defendant argued 

the proffered evidence was nonhearsay circumstantial evidence 

of his mental state and was relevant to show consciousness of 

innocence. (Ibid.) The Supreme Court agreed the defendant’s 

offer to speak with the detective “was not hearsay but ‘simply 

verbal conduct’ consisting of a proposal to perform an act, and 

therefore was ‘neither inherently true nor false.’ [Citation.] 

Furthermore, the statement was ‘offered for the nonhearsay 

purpose of demonstrating consciousness of’ innocence.” (Ibid.) 

Although the Cowan court concluded the proffered 

statement was not hearsay, it nevertheless held that the trial 

court did not abuse its discretion in excluding such evidence. 

(People v. Cowan, supra, 50 Cal.4th at p. 472.) The court cited a 

line of cases holding that evidence that the defendant “did not 

flee from a crime scene is inadmissible to show consciousness of

innocence, even though such evidence has ‘some “tendency in 

mind.” (People v. Clark, supra, 63 Cal.4th at pp. 590–591, 

fn. omitted.) In this case, we consider only the latter theory 

because Pangan’s statement to “call the cops, have her checked 

out by a doctor” did not directly assert his state of mind, but 

rather was circumstantial evidence of it. 
17

reason” to prove this fact.’ ” (Ibid.) As the court explained, “the

inferences arising from evidence of the absence of flight are 

ambiguous because ‘there are plausible reasons why a guilty 

person might also refrain from flight,’ such as fear of recapture or

confidence that flight will be unnecessary because there is no 

strong proof of guilt. [Citations.] Moreover, such evidence also 

creates a ‘substantial danger “of confusing the issues, or of 

misleading the jury.” ’ ” (Id. at pp. 472–473.) 

The Cowen court applied the same reasoning to the 

defendant’s offer to speak to the police, stating that “other 

consciousness of innocence evidence, such as defendant’s offer 

here, although relevant, properly may be excluded on the ground

that its slight probative value is outweighed by the risk of 

confusing the issues.” (People v. Cowan, supra, 50 Cal.4th at 

p. 473.) The court observed that there were “numerous plausible 

reasons why a guilty person might offer to talk to the police,” 

such as a desire to appear innocent or a desire to lie to the police 

to deflect suspicion or to present a false alibi. (Ibid.) The court 

concluded that “[a]gainst such slight probative value, the risk of 

confusing the issues or of delaying the trial is strong, 

since . . . the prosecution would have to be given the opportunity 

to explain the circumstances surrounding the defendant’s offer 

and to present evidence negating an inference of innocence.” 

(Ibid.) 

Like the proffered evidence in Cowan, Pangan’s statement 

to “call the cops, have [Vanessa D.] checked out by a doctor” was 

not hearsay. Rather, the statement was “ ‘ verbal conduct’ ”

consisting of a directive or request to perform an act, and thus, 

was “ ‘neither inherently true nor false.’ ” (People v. Cowan, 

supra, 50 Cal.4th at p. 472.) Moreover, Pangan offered the 
18

statement as circumstantial evidence of his state of mind at the

time Johanna confronted him in the garage with Vanessa D.’s 

allegation. In particular, the defense sought to introduce the 

statement to support an inference that Pangan was innocent 

because a guilty person would not respond to a sexual assault 

accusation by proposing the involvement of the police or a 

forensic exam of the victim. Therefore, as in Cowan, the

statement was “ ‘offered for the nonhearsay purpose of 

demonstrating consciousness of’ innocence.” (Ibid.)

As the Supreme Court observed in Cowan, even if 

nonhearsay, consciousness of innocence evidence is subject 

to exclusion under Evidence Code section 352 because the 

inferences arising from such evidence are ambiguous, and any

minimal probative value may be outweighed by the risk of 

confusing the jury or causing an undue consumption of time. 

(People v. Cowan, supra, 50 Cal.4th at pp. 472–473.) Here, there 

are plausible reasons why a guilty person would have responded 

to a sexual assault accusation by saying to call the police and 

have the victim submit to a forensic exam. Pangan may have 

wished to deflect suspicion from himself and appear innocent 

in the eyes of his wife, who was panicked and crying as she 

confronted Pangan with Vanessa D.’s allegation. Pangan also 

may have been confident that Vanessa D. would not want to

contact the police given her close relationship with his family, or

he may have believed a forensic exam would not yield evidence

directly connecting him to the assault. 

Unlike other consciousness of innocence evidence, however, 

Pangan’s response when first confronted with the sexual assault 

allegation was also relevant to disproving the People’s theory

that his failure to deny the allegation was an admission of guilt. 
19

Over a defense objection, the trial court granted the prosecutor’s 

request to give the jury an instruction on adoptive admissions.7 

The prosecutor’s theory was that Pangan had the opportunity to 

deny Vanessa D.’s allegation on three separate occasions: (1) in 

his Snapchat message to her; (2) in his subsequent meeting with 

Carlos C.; and (3) in the pretext call with Vanessa D. arranged by 

the police. The prosecutor asserted that, because Pangan did not 

deny the allegation on any of these occasions, the jury could 

regard his lack of a denial as an admission. 

In her closing argument, the prosecutor highlighted the 

adoptive admissions instruction, telling the jury that “this is a 

big one that I want you to really focus on.” In describing the 

instruction, the prosecutor stated that “when somebody accuses 

you of something heinous, . . . [¶] [a]ny reasonable person would 

say, No, I didn’t do that.” She then argued to the jury that 

7 The trial court instructed the jury on adoptive admissions 

with CALCRIM No. 357: “If you conclude that someone made 

a statement outside of court that accused the defendant of the 

crime or tended to connect the defendant with the commission of

the crime and the defendant did not deny it, you must decide 

whether each of the following is true: [¶] 1. The statement was 

made to the defendant or made in his presence; [¶] 2. The 

defendant heard and understood the statement; [¶] 3. The 

defendant would, under all the circumstances, naturally have 

denied the statement if he thought it was not true; [¶] AND [¶]

4. The defendant could have denied it but did not. [¶] If you 

decide that all of these requirements have been met, you may 

conclude that the defendant admitted the statement was true. 

[¶] If you decide that any of these requirements has not been 

met, you must not consider either the statement or the 

defendant’s response for any purpose.” 
20

Pangan had an opportunity on three occasions to say he “didn’t 

do this,” and “yet, he never does.” Thus, after successfully 

obtaining the exclusion of testimony that Pangan first responded 

to Vanessa D.’s sexual assault allegation by stating it should be 

investigated, the prosecutor misled the jury by stressing the 

purported absence of a response denying the allegation as 

evidence of Pangan’s guilt. (See People v. Daggett (1983) 

225 Cal.App.3d 751, 758 [prosecutor compounded error in 

exclusion of evidence by asking “the jurors to draw an inference 

that they might not have drawn if they had heard the evidence 

the judge had excluded”]; People v. Varona (1993) 143 Cal.App.3d 

566, 570 [prosecutor misled jury when he “not only argued the 

‘lack’ of evidence where the defense was ready and willing to 

produce it,” but “compounded that tactic by . . . arguing a 

falsehood” contradicted by the excluded evidence].) 

Given the People’s theory that Pangan’s lack of a denial 

could be considered an admission of guilt, his statement to “call 

the cops, have [Vanessa D.] checked out by a doctor” was highly 

probative of how he actually responded when told of Vanessa D.’s 

accusation. The prosecutor implied in her closing argument 

that Pangan was silent when confronted with the allegation 

that he had sexually assaulted Vanessa D. because he had 

multiple opportunities to deny it and he never did. Admission of 

the proffered evidence would have shown that Pangan was not in 

fact silent, but rather told Johanna the morning of the incident, 

when first faced with the accusation, to call the police and have 

Vanessa D. submit to a forensic exam. Accordingly, Pangan’s 

statement was not merely evidence of consciousness of innocence, 

which, as Cowan discussed, is often too ambiguous and 

susceptible to conflicting interpretations to be admissible. 
21

Rather, Pangan’s statement was also relevant to demonstrating

that, whether guilty or not, he did not fail to deny Vanessa D.’s

sexual assault allegation when he was confronted with it. Under 

these circumstances, we conclude the probative value of Pangan’s 

response to the sexual assault allegation was not substantially 

outweighed by its possible prejudicial effects. The court therefore 

erred in excluding the proffered statement. 

Exclusion of Johanna’s Statement to Pangan to 

Apologize Even if He Was Innocent

We next consider the admissibility of Johanna’s statement 

to Pangan to apologize even if he was not guilty because she 

wanted to avoid any police involvement and its possible impact 

on their children. We conclude the trial court erred in excluding 

Johanna’s complete statement because it was not hearsay, and it 

was relevant both to explaining Pangan’s subsequent conduct in 

apologizing to Vanessa D. and to evaluating Johanna’s 

credibility.

During the direct examination of Johanna, defense counsel 

sought to introduce the following portion of Johanna’s testimony 

from the first trial: “I told [Pangan] to end all this and do not do 

anything. If you did not do anything, would you kindly just ask 

for forgiveness so we can all forget this. . . . I was thinking that 

these people are—will affect my children. I don’t want the police 

to go to our house.” 

In a sidebar conference, the prosecution objected to the 

proffered testimony on hearsay grounds, arguing that the defense 

was offering Johanna’s out-of-court statement to Pangan for its 

truth. While the court expressed concern that the defense “wants 
22

to offer it for that purpose,” it also noted that Johanna’s request

to Pangan to apologize could be admissible for the nonhearsay 

purpose of explaining “why [Pangan] did what he did.” The court

stated that it would not allow testimony on Johanna’s reasons for 

telling Pangan to apologize, and that it would consider the rest of 

the proffered testimony after further research. The court later 

indicated that it had ruled that defense counsel could ask

Johanna if she told Pangan to apologize. 

On redirect, defense counsel attempted to ask Johanna if 

she told Pangan “to end all this even if you did not do [it].” The 

trial court interrupted, stating, “We talked about it at side bar. 

Did she tell him to ask for forgiveness, something to that effect, 

that’s what we talked about.” Defense counsel then asked 

Johanna if she told Pangan to “ask for forgiveness.” When 

Johanna answered in the affirmative, defense counsel followed up 

by asking, “Even if he didn’t do it?’ The trial court sustained the 

prosecutor’s objection, noting that they had “talked about this 

at side bar” and “[t]hat’s not permitted.” 

The following day, outside the presence of the jury, defense 

counsel argued that he should have been allowed to ask Johanna 

whether she told Pangan to apologize even if he did not commit 

the assault. The trial court explained that Johanna’s statement 

directing to Pangan to apologize “could be used for the purpose of 

explaining his conduct,” but “her motivation as to why she made 

that statement” was not admissible. Defense counsel asserted

that a statement to apologize did not have the same meaning as a 

statement to apologize even if he did not do it. In response, the 

court stated, “But when you provide that evidence as to whether 

[he] did it or not, that’s explaining why she was making that 

statement and the only purpose of that statement is to explain 
23

his conduct and his conduct is that he apologized. [¶] Now, he 

may apologize because he did it, he may apologize because he 

didn’t do it and he just wants to end the thing. Those are two 

explanations and I don’t know which one is correct. The only 

one who knows that is the defendant.” 

Pangan contends that Johanna’s statement to him to “just 

ask for forgiveness” even “[i]f [he] did not do anything” was not 

hearsay because it was not offered for the truth of the matter 

asserted, but rather to explain how he reacted upon hearing 

such statement. Pangan also argues that the statement was 

relevant because it had a tendency in reason to prove that his

subsequent apologies were not admissions of guilt, but instead 

were made because his wife instructed him to do so. The People

assert that the trial court properly excluded the portion of 

Johanna’s statement that Pangan should apologize even if he “did

not do anything” because it was irrelevant, and because any 

probative value was substantially outweighed by the probability 

that its admission would confuse the issues or mislead the jury.

It is well-established that “an out-of-court statement can be 

admitted for the nonhearsay purpose of showing that it imparted 

certain information to the hearer, and that the hearer, believing 

such information to be true, acted in conformity with such belief.” 

(People v. Montes (2014) 58 Cal.4th 809, 863.) “ ‘ “The statement 

is not hearsay, since it is the hearer’s reaction to the statement 

that is the relevant fact sought to be proved, not the truth of the 

matter asserted in the statement.” ’ ” (People v. Livingston (2012) 

53 Cal.4th 1145, 1162; accord, People v. Bell (2019) 7 Cal.5th 70, 
24

100.) The nonhearsay purpose of the statement “must also be 

relevant to an issue in dispute.” (Montes, at p. 863.)

Here, Johanna’s statement to Pangan to apologize even if 

he was not guilty was admissible for the nonhearsay purpose of 

showing that Pangan reacted to such statement by apologizing to 

Vanessa D. and Carlos C. in their subsequent communications. 

Pangan’s purpose in making these apologies was directly relevant 

to a disputed issue at trial, namely whether or not Pangan was 

admitting guilt by apologizing and asking for forgiveness. The 

People’s theory was that Pangan’s apologies were admissions of 

guilt because an innocent person would not say he was sorry and 

ask for forgiveness when accused of a sexual assault. Evidence 

that Johanna asked Pangan to apologize even if he “did not do 

anything” would tend to show that Pangan was not apologizing 

because he was guilty. Rather, Pangan was apologizing because

his wife wanted him “to end all this” regardless of his innocence

or guilt to avoid any police involvement with the family and the 

potential negative consequences for their children. 

In excluding the words “[i]f you did not do anything” from 

the portion of Johanna’s statement that was admitted, the trial 

court reasoned that such words explained Johanna’s motive 

for making the statement rather than Pangan’s reaction to it. 

However, the excised portion of the statement was also relevant 

to explaining why Pangan would have apologized and asked for 

forgiveness even if he did not commit the sexual assault. As 

our Supreme Court has observed, the “ ‘circumstances under 

which [an] admission was made are also admissible to place 

the statement in context.’ ” (People v. Brown (2014) 59 Cal.4th 

86, 104.) Johanna’s request to Pangan to apologize even if he

“did not do anything” placed his subsequent apologies in context
25

by demonstrating that Pangan may have had other reasons for 

apologizing that were unrelated to consciousness of guilt.

Additionally, Johanna’s reasons for asking Pangan to 

apologize were relevant to assessing the credibility of her 

testimony. While the jury heard evidence that Johanna told 

Pangan to “ask for forgiveness,” it was precluded from hearing 

why she made this request. Without any explanation or context 

for Johanna’s statement, the only reasonable inference that could 

be drawn from the evidence was that Johanna asked Pangan to 

apologize because she believed he was guilty. Admission of the 

complete statement, however, would have shown that Johanna 

may have had other reasons for telling Pangan to apologize that 

had nothing to do with her belief in his innocence or guilt. Such 

evidence was probative of Johanna’s state of mind at the time of 

the statement and was relevant to her credibility as a witness. 

The People contend that the “[i]f you did not do anything” 

portion of Johanna’s statement was ambiguous because it was 

susceptible to two interpretations. It could express either her 

suspicion that Pangan was guilty of the sexual assault, or her 

conviction that Pangan was innocent but should apologize for 

other reasons. As Pangan correctly points out, however, any 

ambiguity in the proffered testimony “ ‘concerns only the weight 

of this evidence, not its admissibility, which does not require 

complete unambiguity.’ ” (People v. Young (2019) 7 Cal.5th 905, 

927.) Admission of Johanna’s complete statement would have 

allowed the jury to decide the meaning and import of her words

and how they may have impacted Pangan’s subsequent conduct. 

In sum, Johanna’s statement directing Pangan to “ask for 

forgiveness” even if he “did not do anything” was not hearsay and 

was relevant to a central disputed issue in the case. Moreover, 
26

permitting Johanna to testify that she told Pangan to apologize 

even if he was innocent and to explain her reasons for doing so 

was not likely to confuse the issues, mislead the jury, or require 

an undue consumption of time. Under these circumstances, the 

trial court erred in excluding the proffered testimony. 

The Error in Excluding the Proffered Evidence 

Was Not Harmless

The erroneous exclusion of evidence does not require 

reversal except where the error caused a miscarriage of justice. 

(Evid. Code, § 354.) A “ ‘miscarriage of justice’ should be declared 

only when the court, ‘after an examination of the entire cause, 

including the evidence,’ is of the ‘opinion’ that it is reasonably 

probable that a result more favorable to the appealing party 

would have been reached in the absence of the error.” (People v. 

Watson (1956) 46 Cal.2d 818, 836; see People v. Richardson

(2008) 43 Cal.4th 959, 1001.) Here, the prosecution’s case against 

Pangan primarily was comprised of two types of evidence: 

(1) Vanessa D.’s clear and consistent identification of Pangan as 

her assailant; and (2) Pangan’s subsequent apologies for the 

assault, which the prosecution argued were admissions of guilt. 

As the People contend on appeal, Vanessa D.’s testimony 

provided compelling evidence of Pangan’s guilt. Pangan was not 

a stranger to Vanessa D. or a mere acquaintance, but rather was 

a close friend with whom she spent a significant amount of time. 

Vanessa D. testified unequivocally at trial that she saw Pangan’s 

face during the assault, and he was the person who digitally 

penetrated her vagina and then orally copulated her. Vanessa D.

also identified Pangan as her assailant when she disclosed the 

assault to Carlos C. as they were driving home and to Johanna 

after they returned to the Pangan residence. 
27

The prosecution did not, however, rely solely on 

Vanessa D.’s identification of Pangan to prove he was the 

perpetrator. Rather, the prosecution also relied heavily on 

Pangan’s failure to deny the sexual assault allegation and his 

subsequent apologies to Vanessa D. and Carlos C. to demonstrate 

his consciousness of guilt. In her closing argument, the 

prosecutor contended that Pangan would have denied the 

allegation when confronted with it if he were innocent, and that 

he admitted his guilt when he (1) apologized to Vanessa D. in the 

Snapchat message, (2) apologized to Carlos C. in their meeting at 

the Pangan residence, and (3) apologized to Vanessa D. in their 

pretext call. Indeed, the prosecutor argued to the jury that 

“[t]hose admissions [were] so over the top” that “it’s his

guilt . . . seething out of him.” The prosecutor also repeatedly 

asserted that Pangan would not have apologized if he did not 

commit the charged acts. At one point, the prosecutor told the 

jury, “Yeah, he’s saying sorry, but think about it. Common sense, 

ladies and gentlemen. If you did nothing, what are you sorry 

about, right? Why would you say, sorry if you didn’t do it. That 

makes no sense at all.” Yet as the prosecutor was well aware, 

there was another explanation for why Pangan might have 

apologized even if he did nothing wrong, which the jury was 

unable to consider due to the erroneous exclusion of Johanna’s 

complete statement. The prosecutor was therefore able to 

capitalize on the trial court’s error by urging the jurors to draw

an inference about the apologies that they might not have 

otherwise drawn had they heard the excluded evidence. (People 

v. Daggett, supra, 225 Cal.App.3d at p. 758; People v. Varona, 

supra, 143 Cal.App.3d at p. 570.) 
28

Additionally, in her closing argument, the prosecutor 

argued that Johanna’s statement to Pangan to apologize showed 

that she knew “exactly what the defendant did” and was 

“trying to . . . diffuse everything.” The prosecutor told the jury: 

“But think about it. If your husband or spouse was accused of 

something, you would be like, what are you talking about? My 

husband didn’t do that. You’re crazy, lady. You know, we let 

you into our house. . . . [W]e drink with you, we let you spend the 

night. You’re gonna accuse my husband of that? [¶] But 

Johanna doesn’t do that, right. She’s on damage control. She’s 

trying to make this thing go away.” Hence, after the trial court 

erroneously ruled that Johanna’s motivation for directing Pangan 

to apologize was irrelevant, the prosecution compounded the 

error by arguing that Johanna must have been motivated by her 

knowledge of Pangan’s guilt.

The exclusion of the proffered evidence thus allowed the 

prosecution to argue to the jury that Pangan only apologized 

because he was guilty, and that Johanna only directed Pangan 

to apologize because she knew he was guilty. The defense was 

unable to refute the prosecution’s theory that his apologies were 

admissions of guilt by presenting evidence that Pangan was not 

silent when first confronted with the sexual assault accusation, 

and that he later apologized because his wife urged him to do so 

even if he was innocent. The defense was also unable to present 

evidence explaining why Johanna would have told Pangan to 

apologize even if she believed he was not guilty. 

As Pangan argues on appeal, the trial court’s rulings 

had the effect of allowing the jury to hear only part of the story 

regarding Pangan’s alleged admissions of guilt. The jury heard 

that Johanna confronted Pangan with Vanessa D.’s sexual 
29

assault allegation, but did not hear Pangan’s response that the 

allegation should be investigated. The prosecutor then 

improperly relied on the exclusion of such evidence to argue that 

Pangan’s purported failure to deny the allegation when 

confronted with it should be regarded as an admission of guilt. 

The jury also heard that Johanna told Pangan to apologize to 

Vanessa D., but did not hear that Johanna asked Pangan to do so 

even if he did nothing wrong to avoid police involvement and the 

possible impact on their children. At the first trial, the evidence 

of Johanna’s complete statement to Pangan to apologize was 

admitted, and the jury was hopelessly deadlocked with five jurors 

voting to acquit. Under these circumstances, we conclude there is 

a reasonable probability that Pangan would have received a more 

favorable outcome at trial if the proffered evidence had been 

admitted. Accordingly, Pangan’s judgment of conviction must be 

reversed and the matter remanded for a new trial.8 

8 In light of this conclusion, we need not consider Pangan’s 

argument that the trial court improperly imposed fines and fees 

at sentencing without determining his ability to pay.
30

DISPOSITION

The judgment is reversed and the matter is remanded to 

the superior court for a new trial consistent with this opinion.

NOT TO BE PUBLISHED.

KALRA, J.*

We concur:

EDMON, P. J.

LAVIN, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.