Filed 12/22/23 P. v. Yang CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

XENG YANG,

Defendant and Appellant.

F084940

(Super. Ct. No. F20905961)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Heather 

Jones, Judge.

Spolin Law, Spolin & Dukes, Aaron Spolin, Caitlin Dukes, and Jeremy M. 

Cutcher for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Kelly 

E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOooAppellant Xeng Yang was convicted by jury of sexual intercourse with a child 

10 years of age or younger (Pen. Code, § 288.7, subd. (a); count 1); lewd act upon a child 
2.

(Pen. Code, § 288, subd. (a); count 2); and two counts of aggravated sexual assault of a 

child by means of rape (Pen. Code, §§ 269, subd. (a)(1), 261, subd. (a)(4); counts 3 & 4). 

The trial court sentenced appellant to consecutive indeterminate prison terms of 

25 years to life as to count 1 and 15 years to life as to counts 3 and 4, and a determinate 

prison term of six years as to count 2. Appellant’s total prison sentence was 55 years to 

life plus six years. 

On appeal, appellant contends (1) the trial court erred by admitting expert 

testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS) because the 

prosecution made an inadequate showing that such testimony was necessary and (2) the 

trial court erred by denying appellant’s motion for new trial based on his contention that 

permitting a detective to testify about the contents of a sound recording violated Evidence 

Code1section 1523’s prohibition of oral testimony to prove the contents of a writing. 

We affirm the judgment.

FACTS

Appellant met Z.T. in approximately 2008. Z.T. had two children when she and 

appellant met, one of whom was J.Y., born in 2002. Appellant and Z.T. entered into a 

dating relationship, moved to California together in 2011, and married in the Hmong 

culture in 2012. Appellant and Z.T. went on to have three other children together. 

J.Y. testified that when she first met appellant their relationship was “[l]ike a 

father and daughter.” She liked him at first, but her opinion of him changed when he 

started touching her inappropriately. J.Y. testified to four separate incidents of sexual 

abuse. 

First, when J.Y. was younger than 10 years old, she was sitting on the couch with 

appellant and her brother watching SpongeBob on a laptop, when, at some point, 

appellant started rubbing J.Y.’s vagina over her clothes and later between her shorts and 

1 All further undesignated statutory references are to the Evidence Code. 
3.

underwear. She thought appellant told her not to tell her mother, and she did not do so 

because she was scared.

Second, when J.Y. was around nine years old, she was playing hide-and-seek with 

appellant and her brother. She and her brother hid, while appellant was the seeker. J.Y. 

was afraid appellant might try to touch her inappropriately again, so she wore jean shorts 

with three buttons to make it harder for him to touch her. She hid in the bedroom on the 

corner of the bed curled up in a ball. Appellant came to find her, and when he did, he 

took off her shorts and her underwear, got on top of her with his penis out, forced his 

penis into her vagina, and moved his body back and forth with his hands on her hips. 

J.Y. testified she felt dead. She just “spaced out,” and the only thing she felt was pain. 

J.Y. did not tell her mother about the incident, partly because she did not want to ruin her 

family. 

J.Y. began wearing jeans and a belt to bed to protect herself from further sexual 

conduct. The third incident happened one night when she was sleeping on the bottom 

bunk of a bunk bed she shared with her brother. She was not yet 14 years old. Appellant 

came to her room, and she woke up to him taking off her pants. He pulled off her 

underwear and put his penis in her vagina and put his hands on her hips. She thought at 

the time if she tried to get up or fight back, he would hit her. At some point, he stopped 

and put her pants and belt back on. J.Y. again did not tell anyone because she thought 

her mother was happy and did not want to ruin that for her. 

On another occasion, appellant again came into J.Y.’s room at night and put his 

penis inside her vagina. She was not wearing jeans because that had not worked. J.Y. 

gave up and felt “numb” and “dead” and felt pain. J.Y. was again afraid appellant might 

hit her if she did not allow him to do what he wanted, as he had hit her in the past when 

she was “being a bad kid.” Afterwards, appellant pulled her pants back up and left the 

room. When appellant left, J.Y. was mad at herself for not standing up for herself, and 

she cried and punched the wall. Appellant then came back into the room and apologized 
4.

and told her he would never do it again. That was the last time he touched her in a sexual 

manner. 

When J.Y. was in the 7th or 8th grade, she told her mother appellant had raped her

because she could not hold it in any longer. Z.T. “broke down” in response to hearing 

this. Appellant was present when J.Y. made this disclosure and admitted it was true. 

According to Z.T., appellant was trying to “find excuses” and telling J.Y. to stop and let 

him explain. Z.T. testified J.Y. had never previously told her that appellant had done 

anything though she would make comments like, “Mom, I don’t like him,” and at times 

looked like she was trying to stay away from him. 

The news caused Z.T. to have what she described as a “minor stroke.” She went 

to the hospital but started to feel better when she was waiting in the emergency room and 

went home. Z.T. and her children then stayed with appellant’s brother and his wife for a 

few weeks. Z.T. explained she eventually forgave appellant and decided to give him a 

second chance because she had no family or friends in town except for appellant’s family 

and friends. She eventually returned to the apartment she shared with appellant, but J.Y. 

stayed with Z.T.’s brother-in-law for a few additional weeks before returning as well.

After J.Y.’s disclosure, Z.T. did not see appellant the same way. They fought 

more and she was “always terrified” of him because of what he did. Their fighting turned 

physical with him as the aggressor, though she hit him back. On one occasion she called 

the police to report the domestic violence; when they responded, she did not report what 

had happened to J.Y.

Eventually, Z.T. told her sister about what appellant had done to J.Y., and it was 

her sister who made the decision to call the police. Z.T. “didn’t have the guts” to call, as 

she felt sorry for appellant and her younger children who she did not want to grow up 

without a father. 

Z.T. testified that at some point she had placed a mini voice recorder in her shared 

bathroom with appellant because she had a feeling he was cheating on her and having a 
5.

girlfriend come over. This recorder picked up a conversation between she and appellant 

that took place in 2020 where, according to Z.T., “[appellant] mentioned that the only 

persons that he rape is [J.Y.]” She put the recording on a flash drive and gave it to 

Detective Derek Avila. 

Avila testified Z.T. gave him a flash drive of “some conversations she had.” To 

his understanding, the conversations were in the Hmong language. He booked the flash 

drive into evidence and “reached out to Detective Cha [Thao] who is Hmong speaking as 

well and [Avila] had him listen to the contents of the thumb drive to transcribe it for 

[Avila]—interpret it for [Avila].” On cross-examination, Avila stated he never listened to 

the conversation himself.

Detective Cha Thao testified Hmong was his first language and he uses it in both 

his personal and professional life. He was certified by the City of Fresno as a Hmong 

interpreter. The recording provided to him by Avila was approximately an hour and 

40 minutes long and was a conversation between an adult man and an adult female 

spoken in both Hmong and English. Thao testified the parties to the conversation 

sounded upset. Thao used the context of the conversation to translate the Hmong 

statements to English. 

At the beginning of the recording, the female, who Thao believed to be Z.T. “said 

something along the lines of the reason why she didn’t want to be with him any more was 

because—that he couldn’t see himself guilty.” Thao testified the male said in response, 

“Yeah, I know what I did.” 

Later, the female “mentioned something about ever since they’ve been married 

that the male had been lying to her” to which the male responded by saying “something 

along the lines of, ‘The only thing that I have lied to you about was [J.Y.],’ and also 

mentioned that that was one of his regrets in his entire life and that he wished to take 

back.”
6.

The third part of the recording Thao thought was “relevant was when the female 

half was referring to why the male half was so good and that he doesn’t see himself 

wrong or guilty.” Thao explained that in Hmong, a particular word that was used—

txaum—either means “you’re wrong or it could also mean that you’re guilty” depending 

on the context of the conversation. The male stated in response to the female’s statement, 

“I am wrong or guilty for what I did bad to [J.Y.]” 

The fourth thing that Thao felt was relevant “was when the male half was asking 

something along the lines of—well, questioning the female half that he didn’t love them 

and why is he doing this now as to why didn’t she do this when he wronged [J.Y.] and 

why now?” The female responded “along the lines of, ‘You are the guilty one,’ or ‘You 

are the one that’s guilty.’ ” 

The fifth portion that Thao described was when “The male half had said that he 

loved his kids, the female half had said, sarcastically, ‘Oh, you love your kids?’ And 

then the male half responded by saying, ‘I raised them.’ The female half was saying, 

‘You didn’t raise them, you only raped them.’ ” Thao stated, “I remember the female 

half talking about, ‘You broke her virginity,’ and then the male half said, ‘There’s still 

[the names of Z.T. and appellant’s three other daughters].’ ”

Dr. Blake Carmichael testified as an expert on CSAAS and overall psychology of 

child victims. He testified CSAAS is derived from a paper written in the early 1980’s by 

Dr. Roland Summit, where observations of child victims of sexual abuse were 

synthesized “to help people kind of have a context for understanding child victims’ 

behavior, reactions and disclosures of sexual abuse.” The framework is an educational 

tool that is still used in treatment to help parents dispel misconceptions, for example, that 

they should have seen the signs of sexual abuse. CSAAS is not used to say “if they’ve 

done these things, then they’ve been abused.... It’s used for people to understand there is 

a variety of ways kids react when they’re being abused.” For example, according to 

Carmichael, it is not true that: child abuse victims will always be angry with or hate their 
7.

abuser; if one child in a household is being abused, other children must be as well; 

children are only abused by strangers; and children will remember all the details about 

incidents of sexual abuse. 

Carmichael further testified there were five components of CSAAS: secrecy; 

helplessness; entrapment or accommodation; long delayed, unconvincing or conflicted 

disclosures; and retraction or recanting. 

As for the “secrecy” component, perpetrators will try to ensure that child victims 

will not disclose the abuse and therefore might threaten the child or their family members 

or tell them they will not be believed. Alternatively, a child victim can sometimes keep 

abuse a secret based on seeing the abuser get angry about other things rather than the 

perpetrator expressly telling them not to tell. Fear of what will happen to their family 

after disclosure or shame can also be a component of why a child does not tell anyone 

about abuse. 

As for “helplessness,” child victims often do not fight their abusers. When the 

perpetrator is a trusted adult, the “power dynamic grows even greater.” 

As to “entrapment and accommodation,” children may disassociate and “pull[] 

back from the reality of what’s happening,” such as focusing on a corner of the room or 

playing a song in their head. It is a misconception that children who have been abused 

will always appear sad or angry when talking about sexual abuse. Children also will still 

engage with the perpetrator in regard to other activities such as watching movies or 

playing video games. 

As for “delayed, unconvincing disclosure,” most child victims do not tell anyone 

about the abuse right away. They may be unconvincing in the way they recount their 

experience because their memory and language are not as well developed as that of 

adults.

Finally, as to “retraction,” it is not uncommon for abused children to retract their 

stories perhaps because of family pressure or negative consequences of telling. 
8.

The components of CSAAS are not present in all children who have been abused, 

or maybe only some components may be present. CSAAS can assist in understanding 

that there are a variety of ways children can react; it is not used as a “checklist” to 

determine if abuse happened. 

Appellant’s sister-in-law testified on his behalf that there had been no occasion 

that Z.T. asked to spend the night at their house except in 2018, when the whole family, 

including appellant, stayed for about three to four weeks because there had been flooding 

in their home. On another occasion, Z.T. and J.Y. spent one night at her house. 

DISCUSSION

I. Admission of CSAAS Expert Testimony

A. Relevant Background

The People moved in limine to admit evidence of CSAAS and the 

neurophysiology of trauma through Carmichael’s testimony. In their written motion, 

they proffered: 

“The People seek to admit evidence of CSAAS for the limited purpose of 

explaining the myths of sexually abused children and to show that victims’ 

reactions as demonstrated by the evidence are not inconsistent with having 

been sexually abused. Dr. Roland Summit states that CSAAS is ‘proposed 

as a simple and logical model for use by clinicians to improve 

understanding and acceptance of the child’s position in the complex and 

controversial dynamics of sexual victimization.’ There are five areas or 

stages of CSAAS: Secrecy, Helplessness, Entrapment or accommodation, 

delayed or unconvincing disclosure, and recanting or retraction. The 

purpose of CSAAS is to explain certain myths regarding the above stages.” 

Appellant moved in limine to exclude expert testimony on CSAAS. Appellant 

identified “three separate grounds” for exclusion: (1) the prosecution had not provided 

any relevant statements from any CSAAS expert; (2) CSAAS testimony “would amount 

to evidence that J.Y. and Z.T. have a character or propensity to tell the truth about the 

sexual assault and related sex crimes in this case”; and (3) CSAAS testimony “would 

amount to improper expert opinion that J.Y. and Z.T. are telling the truth about the sexual 
9.

assault and related sex crimes in this case.” In the alternative, the defense requested the 

court order that the expert be “prohibited from opining in any way about the likelihood an 

alleged sexual assault victim is telling the truth.”

When the court addressed appellant’s motion to exclude CSAAS evidence, the 

court began with appellant’s alleged discovery violation. The prosecutor explained she 

had not taken any statements from the CSAAS expert and had provided the expert’s CV 

to defense counsel several months prior. 

In response, defense counsel stated, “the prosecutor surely has statements from 

this expert through her office” and “would not be calling this expert unless she had some 

general idea about what he’s going to say and that would be based on past experience in 

her office, so I think it’s her duty to find out this expert’s statements on the subject of 

CSAAS and to provide me with some summary of those statements so I can prepare for 

my cross-examination. Otherwise, I’m totally in the dark.” In response to the trial 

court’s question of whether he was not familiar with CSAAS expert testimony, defense 

counsel stated, “Not really, no.” The trial court concluded that because defense counsel 

had prepared an in limine motion regarding CSAAS testimony and had received the 

expert’s CV, he thus “had some prior knowledge that this expert was going to be 

testifying.” The court then addressed the prosecutor, and the following colloquy took 

place: 

“[THE COURT:] So, [prosecutor], your intention, just so we’re 

clear, is to call this witness to explain what [CSAAS] is just in general, 

they’re not to make any correlations between [J.Y.] or [J.Y.]’s mother and 

[CSAAS] because they haven’t interviewed [J.Y.]’s mother and [J.Y.], so 

they can’t make that diagnosis, correct?” 

“[PROSECUTOR]: Correct. 

“THE COURT: So they’re just going to sit up here and discuss 

what [CSAAS] is and what the characteristics of it are?
10.

“[PROSECUTOR]: Correct. They will be asked no hypotheticals 

by myself.

“THE COURT: And your intention in bringing that is then you, 

after the summation of all of the evidence during your closing arguments, 

intend to—to argue that this is why there was late reporting or this is why 

the family reconciled and then reported later or whatever you intend to 

argue, but you’re planning to make the connection—draw the lines during 

your argument portion?

“[PROSECUTOR]: Correct, during closing.” 

In ruling on the CSAAS in limine motion, the trial court first concluded there was 

no discovery violation because appellant was provided the expert’s CV months prior to 

trial. The court indicated it agreed with appellant that the expert would not be permitted 

to testify that J.Y. or her mother had the character or propensity to tell the truth. The 

prosecutor agreed. The court further ruled the expert would not be permitted to vouch for 

J.Y. or J.Y.’s mother by saying statements like “ ‘Making allegations is rare.” With those 

limitations, the court ruled the expert was allowed to testify.

B. Analysis 

Appellant’s challenge to the admission of CSAAS evidence in this case is a 

narrow one. He contends that the prosecution made an inadequate showing that the 

testimony was being introduced for a legitimate purpose. Appellant contends (1) the 

prosecution did not adequately show CSAAS was “sufficiently beyond common 

experience that the opinion of an expert would assist the trier of fact” as provided in 

section 801, subdivision (a)2 and (2) the prosecution did not carry its burden to produce 

evidence “as to the existence of the preliminary fact” that “jurors would harbor 

2 Section 801, subdivision (a) provides: “If a witness is testifying as an expert, his 

testimony in the form of an opinion is limited to such an opinion as is” “[r]elated to a 

subject that is sufficiently beyond common experience that the opinion of an expert 

would assist the trier of fact.”
11.

misconceptions as to this subject matter” so as to justify admission of the evidence as 

provided in section 403, subdivision (a).

3 We find no error. 

We will not disturb a trial court’s decision to admit expert testimony on appeal 

unless a manifest abuse of discretion is shown. (People v. McAlpin (1991) 53 Cal.3d 

1289, 1299 (McAlpin).) 

Our high court has held expert testimony on CSAAS, or “the common reactions of 

child molestation victims” is admissible “ ‘to disabuse jurors of commonly held 

misconceptions about child sexual abuse, and to explain the emotional antecedents of 

abused children’s seemingly self-impeaching behavior’ ” but is inadmissible, however, to 

prove the abuse occurred. (McAlpin, supra, 53 Cal.3d at pp. 1300‒1301.) In California, 

CSAAS testimony has been deemed admissible for its limited purpose of assisting the 

fact-finder in evaluating the credibility of an alleged victim of child sexual abuse for 

decades. (See, e.g. People v. Lapenias (2021) 67 Cal.App.5th 162, 172‒175; People v. 

Munch (2020) 52 Cal.App.5th 464, 468‒473 (Munch); People v. Perez (2010) 

182 Cal.App.4th 231, 245; In re S.C. (2006) 138 Cal.App.4th 396, 418; People v. Patino

(1994) 26 Cal.App.4th 1737, 1744‒1745; People v. Housley (1992) 6 Cal.App.4th 947, 

955‒956; People v. Harlan (1990) 222 Cal.App.3d 439, 449‒450; People v. Stark (1989) 

213 Cal.App.3d 107, 116; People v. Bowker (1988) 203 Cal.App.3d 385, 393‒394; 

People v. Gray (1986) 187 Cal.App.3d 213, 217‒220; People v. Roscoe (1985) 

168 Cal.App.3d 1093, 1097‒1100.)

3 Section 403, subdivision (a) reads: “The proponent of the proffered evidence has 

the burden of producing evidence as to the existence of the preliminary fact, and the 

proffered evidence is inadmissible unless the court finds that there is evidence sufficient 

to sustain a finding of the existence of the preliminary fact, when: [¶] (1) The relevance 

of the proffered evidence depends on the existence of the preliminary fact; [¶] (2) The 

preliminary fact is the personal knowledge of a witness concerning the subject matter of 

his testimony; [¶] (3) The preliminary fact is the authenticity of a writing; or [¶] (4) The 

proffered evidence is of a statement or other conduct of a particular person and the 

preliminary fact is whether that person made the statement or so conducted himself.” 
12.

Courts have recognized that CSAAS evidence is at risk of being “misapplied as a 

predictive index by the jury.” (People v. Bowker, supra, 203 Cal.App.3d at p. 393.) 

Thus, the evidence must be tailored to the purpose for which it is being received; it must 

be “targeted to a specific ‘myth’ or ‘misconception’ suggested by the evidence” though 

the prosecution does not have to identify the specific misconception to be addressed; it is 

sufficient if the victim’s credibility is placed in issue due to paradoxical behavior, such as 

delay in reporting a molestation or in inconsistent statements. (Bowker, at pp. 393‒394; 

see, e.g., People v. Patino, supra, 26 Cal.App.4th at pp. 1744‒1745.) 

Before reaching appellant’s narrow issue, we note that in applying these general 

principles, the trial court did not abuse its discretion in allowing CSAAS testimony. As 

we have stated, an abundance of published case law supported the prosecution’s position 

that CSAAS evidence was admissible to disabuse the jurors of misconceptions about how 

child sexual abuse victims behave. Here, the evidence demonstrated that the CSAAS 

testimony was relevant and helpful to the jurors, as the relationship between J.Y. and 

appellant was one where J.Y. may have felt pressure to keep the abuse a secret based on 

the power imbalance and familiarity of the relationship, and J.Y. did not fight back

against appellant, did not tell anyone about the abuse for years, and continued to live with 

appellant without letting on to other members of the household what had happened. The 

jurors would have benefitted from learning these behaviors were not necessarily 

inconsistent with behaviors of abused children in evaluating J.Y.’s credibility. 

Moving to appellant’s specific argument, to the extent he is arguing the 

prosecution was required to offer evidence to justify admission either under section 801 

or section 403, respondent contends appellant forfeited this claim by failing to object on 

these grounds below. We agree with respondent. Had appellant wanted to argue expert 

testimony was not relevant or necessary because the behaviors of child sexual abuse 

victims were not beyond the common knowledge of jurors, or similarly because he 

disputed the preliminary fact that the jurors harbored misconceptions about child sexual 
13.

abuse victims, he could have requested an evidentiary hearing at which the prosecution 

could have presented evidence as to the necessity of the testimony. (See § 402, subd. (a) 

[the article setting forth the procedure for establishing preliminary facts applies when the 

existence of a preliminary fact “is disputed”].)4 As appellant did not do so, this issue was 

not properly litigated before the trial court, and we cannot adequately review his claim.

To the extent appellant is generally asserting on appeal that CSAAS testimony is 

no longer relevant because jurors no longer harbor the misconceptions CSAAS is meant 

to disabuse, we reject this argument. The Court of Appeal in Munch fairly recently 

rejected a similar argument. (Munch, supra, 52 Cal.App.5th at p. 468.) There, the court 

held that it was bound by our high court’s holding in McAlpin, supra, 53 Cal.3d 1289 that 

CSAAS evidence is admissible to rehabilitate a child sexual abuse victim’s credibility 

and “ ‘ “is needed to disabuse jurors of commonly held misconceptions about child 

sexual abuse, and to explain the emotional antecedents of abused children’s seemingly 

self-impeaching behavior.” ’ ” (Munch, at p. 468; see Auto Equity Sales, Inc. v. Superior

Court (1962) 57 Cal.2d 450, 455.) The Munch court reaffirmed that “CSAAS evidence is 

a valid and necessary component of the prosecution case in matters involving child 

abuse” and “the reasoning of McAlpin is as valid today as it was in 1991.” (Munch, at 

p. 466.) We can find no court who has disagreed with Munch’s conclusion to date. We 

agree with the appellate court in Munch and conclude the evidence was probative under 

McAlpin based on the state of the evidence, as we have explained. 

For these reasons, we conclude the court did not err by allowing CSAAS 

testimony in the present case. 

4

If appellant had lodged the appropriate objection, the prosecution likely would 

have been able to present such evidence, as Carmichael testified at trial CSAAS is still 

used in treatment today to help dispel myths held by parents of abused children. 
14.

II. Denial of Appellant’s New Trial Motion Regarding Admission of Thao’s 

Testimony

A. Relevant Legal Background

“The content of a writing may be proved by an otherwise admissible original.”

(§ 1520.) The content of a writing may also be proved by otherwise admissible 

“secondary evidence” unless “[a] genuine dispute exists concerning material terms of the 

writing and justice requires the exclusion” or “[a]dmission of the secondary evidence 

would be unfair.” (§ 1521, subd. (a).) A “writing” includes “every other means of 

recording ..., any form of communication ..., including ... sounds.” (§ 250.) 

Section 1523 provides that oral testimony is not admissible to prove the content of 

a writing unless one of the statutory exceptions apply. (§ 1523.) These exceptions are 

(1) “if the proponent does not have possession or control of a copy of the writing and the 

original is lost or has been destroyed without fraudulent intent on the part of the 

proponent of the evidence” (§ 1523, subd. (b)); (2) “if the proponent does not have 

possession or control of the original or a copy of the writing and either” (a) “[n]either the 

writing nor a copy of the writing was reasonably procurable by the proponent by use of 

the court’s process or by other available means” or (b) “[t]he writing is not closely related 

to the controlling issues and it would be inexpedient to require its production” (§ 1523, 

subd. (c)); or (3) “if the writing consists of numerous accounts or other writings that 

cannot be examined in court without great loss of time, and the evidence sought from 

them is only the general result of the whole” (§ 1523, subd. (d)). Oral testimony to prove 

the contents of a writing is not governed by section 1521. (See § 1521, subd. (b) 

[“Nothing in this section makes admissible oral testimony to prove the content of a 

writing if the testimony is inadmissible under Section 1523 (oral testimony of the content 

of a writing).”].) 
15.

B. Relevant Procedural Background

Appellant moved in limine to exclude Thao’s testimony to prove the contents of 

the sound recording produced by Z.T. of her conversation with appellant pursuant to 

section 1523. 

The trial court initially did not agree with appellant that the sound recording was a 

“writing” and ruled that if the People laid the proper foundation, Thao would be 

permitted to testify as to the contents of the sound recording. 

Later, after the evidence portion of trial had begun and prior to Thao’s testimony, 

defense counsel again noted his position that Thao’s testimony was prohibited by 

section 1523 and asserted his intention to preserve his objection for the record. This 

prompted the trial court to state its intention to make its ruling on the record clear prior to 

Thao’s testimony. The court stated that based on section 1523, the sound recording “may 

qualify as a writing,” and assuming that it did, it was admissible “by otherwise admissible 

secondary evidence, which in this case is Detective Thao’s testimony, as long as it’s not 

subject to the exclusionary rule and the Court has ruled that it is statements of the 

defendant and, therefore, there is a hearsay exception that applies.” The court noted 

under section 1523, subdivision (d), it was “finding that Detective Thao’s testimony as 

secondary evidence is appropriate” because the recording was approximately two hours 

long, contained statements in both English and Hmong languages, and, according to the 

parties, contained “lots of statements that are inflammatory to the defendant and have 

nothing to do with this case and that neither of you wish to have presented to the jury.”

The court explained the length of the recording as well as the mixture of English and 

Hmong “would only cause confusion to the jury and would be unhelpful.” The court 

further ruled that appellant’s objections that Thao’s interpretation may not be accurate 

“goes to the weight, not the admissibility” of the evidence and defense counsel would be 

“free to develop all of that on cross-examination” and bring in portions of the recording 
16.

the defense felt was inaccurately interpreted and play them himself or have the Hmong 

interpreter on his witness list testify in rebuttal to Thao’s testimony.

Thao testified at trial, and appellant was convicted, as described, ante. 

Following appellant’s conviction, and prior to the trial court’s pronouncement of 

judgment, appellant moved for a new trial under Penal Code section 1181, paragraph 5, 

which provides that a court may grant a new trial “[w]hen the court has misdirected the

jury in a matter of law, or has erred in the decision of any question of law arising during 

the course of the trial, and when the district attorney or other counsel prosecuting the case 

has been guilty of prejudicial misconduct during the trial thereof before a jury.” 

Appellant reiterated his argument that Thao’s testimony was inadmissible pursuant to 

section 1523 and violated his state and federal constitutional rights “to due process and 

trial.” 

In ruling on appellant’s new trial motion, the trial court reiterated its ruling that the 

contents of a writing may be proved by “otherwise admissible secondary evidence,” and 

that proper foundation was laid for the recording. The court explained it found Thao’s 

testimony satisfied section 1523, subdivision (d), and that “the length of the recording 

coupled with the fact that it was a mixture of Hmong and English” rendered admission of 

Thao’s testimony “appropriate.” The court added that the recording included 

inflammatory, irrelevant information that neither party wanted to present to the jury. The 

court explained that Thao’s testimony also provided context for the conversation and 

“gave the general description of what was happening, gave the setting and the nature of 

the conversation, the emotional aspect of it” and in “[s]everal points of his testimony he 

described that a certain Hmong word was used and that it could mean different things in 

the Hmong language, but in the context of the conversation, given all the other statements 

he heard, he gave what his understanding of that word in the context it was utilized.” The 

court reiterated defense counsel was free to cross-examine Thao on the accuracy of his 

interpretation. 
17.

The trial court went on to explain that it found “[t]he testimony from the victim 

and the victim’s mother ... extremely compelling” and that J.Y.’s testimony was 

“absolutely credible, and, frankly, heartbreaking,” and “[t]he details that she testified to 

were specific and very sad.” The court stated it found the defense’s theory that the 

allegations were fabricated so Z.T. could get out of her relationship with appellant was 

undermined by the evidence that neither J.Y. nor Z.T. made any attempts to contact the 

police and neither wanted any attention from the allegations. The court stated that J.Y.’s

and Z.T.’s testimony was “the most compelling and credible evidence that the Court 

heard.” The court stated it did not find error by admission of Thao’s testimony, but “[i]f 

there was, it would be harmless.” 

C. Analysis

“ ‘The trial court has broad discretion in ruling on a new trial motion, and its 

decision will be disturbed only for clear abuse of that discretion.’ ” (People v. Carabajal 

(2022) 86 Cal.App.5th 1, 7.) 

Appellant contends the court erred by denying his motion for a new trial, again 

asserting that Thao’s testimony was inadmissible under section 1523. Respondent does 

not assert the court’s evidentiary ruling was correct but argues appellant failed to show 

the admission of the testimony resulted in a miscarriage of justice. We agree with 

respondent and conclude the trial court did not abuse its discretion in denying appellant’s 

motion for new trial. As we explain, we agree the trial court’s initial ruling allowing 

Thao to testify to the contents of the recording was erroneous; however, we find the trial 

court did not err in denying appellant’s new trial motion because its finding that any error 

was harmless was reasonable and supported by the record. 

First, as we have stated, we agree with appellant that Thao’s testimony was 

inadmissible to prove the contents of the recording, as none of the exceptions set forth in 

section 1523 could reasonably apply. It does not appear to be disputed that because the

prosecution was in possession of the recording, the exceptions set forth in section 1523, 
18.

subdivisions (b) and (c) did not apply. Rather, the trial court relied on the exception set 

forth in section 1523, subdivision (d), which applies when two conditions are fulfilled:

(1) when the writing “consists of numerous accounts or other writings that cannot be 

examined in court without great loss of time,” and (2) “the evidence sought from [the 

writings] is only the general result of the whole.” The trial court’s conclusions that both 

applied was not reasonable. 

It cannot reasonably be concluded that the examination of the writing, i.e., playing 

the recording for the jury, would result in a “great loss of time,” as the prosecution sought 

to introduce only five, very short snippets of the recording, and the parties agreed the 

recording in its entirety contained irrelevant information.5 The record discloses no 

reason why the prosecution could not have made clips of the recording and played them 

for the jury with any portions in Hmong provided via a written transcript. It also cannot 

reasonably be concluded that the evidence sought was “only the general result of the 

whole” because the relevant evidence was not a “general result” or summary but specific 

statements made by appellant, which required evaluation by the jury. We acknowledge 

Thao testified he relied on the context of the conversation to make his translations, but 

the prosecution could have played other portions of the conversation to establish, for 

example, the emotional tone of the conversation or sought additional testimony from Z.T. 

to set more context for the conversation, and/or presented testimony from the interpreter 

to explain any nuances relevant to Hmong-to-English translation. For these reasons, we 

conclude the trial court erred by allowing Thao to testify to the contents of the sound 

recording. 

5 Even if the prosecution sought to admit the entire recording, one hour and 40 

minutes does not strike us as a “great loss of time.” Law enforcement interviews with 

defendants, as one example, are frequently played at trials and can be up to two hours or 

more. 
19.

This does not end our analysis, as we also conclude the trial court’s determination 

that any error was harmless was reasonable and supported by the record. As such, the 

denial of the new trial motion was not an abuse of discretion. It is appellant’s burden to 

prove that a more favorable result is reasonably probable had the recording itself been 

played for the jury with a translated transcript in lieu of Thao’s testimony. (People v. 

Watson (1956) 46 Cal.2d 818, 836‒837.)6 He did not carry this burden before the trial 

court and has not done so on appeal.

There is little to no evidence on the record that admitting the recording instead of 

Thao’s testimony would have affected any juror’s verdict. Even assuming the actual 

recording would not be admitted at a new trial, we still find the trial court’s conclusion 

that any error was harmless was reasonable. Thao’s testimony was short and relative to 

the other testimony, not a large portion of the People’s case. The admissions testified to 

by Thao were somewhat vague and when considered in context of the entire trial record, 

not particularly compelling. We take note of the trial court’s comments that J.Y.’s 

testimony was “absolutely” credible and that her and Z.T.’s testimony was the most 

compelling part of the People’s case. This is significant, as the trial court, in evaluating 

appellant’s new trial motion, could rely on the witnesses’ live testimony—something we 

as the reviewing court cannot do—and we defer to the trial court’s finding that the 

witnesses had strong credibility. In addition, Z.T., a party to the conversation and 

therefore competent to testify to its contents, testified that during the conversation, which

6 Appellant makes the bare assertion that his constitutional right to a fair trial was 

violated by the admission of the testimony and, in asserting the error was prejudicial, that 

“he was prejudiced pursuant to both Chapman v. California [(1967) 386 U.S. 18] and ... 

Watson.” However, “the admission of evidence, even if erroneous under state law, 

results in a due process violation only if it makes the trial fundamentally unfair.” (People 

v. Partida (2005) 37 Cal.4th 428, 439.) Appellant does not cite any authority to support 

or make any specific arguments that the asserted error rises to the level of an error of 

constitutional magnitude necessitating us to apply the more stringent Chapman standard. 

As such, we apply the Watson standard.
20.

was the subject of the recording, appellant admitted to “rap[ing]” J.Y. Moreover, both 

Z.T. and J.Y. testified that appellant had admitted J.Y.’s allegations were true the day 

J.Y. disclosed them to Z.T. As the trial court pointed out, that neither J.Y. nor Z.T. 

reported the allegations to law enforcement and Z.T.’s testimony that she wanted to stay 

with appellant so her children would have a father is persuasive evidence that they did 

not, as appellant argued to the jury, conspire to get Z.T. out of her toxic or abusive 

relationship with appellant. 

In our view, the primary risk of prejudice arising from admission of Thao’s 

testimony to prove the contents of the recording was that it deprived the jury of 

evaluating the tone or any other similar vocal characteristics of appellant’s responses to 

Z.T.’s statements, which would have helped the jury evaluate what weight to give the 

statements. Appellant has not offered any argument, however, as to whether this lost 

opportunity would have affected a juror’s verdict. 

Instead, appellant’s primary arguments in support of his contention he was 

prejudiced is that the prosecution relied on Thao’s testimony in their closing argument 

and the jury requested readback of it. These arguments are unavailing. First, appellant’s 

arguments ignore that the question before us is not whether the admission of appellant’s 

statements affected the jury’s verdict, but whether the admission of Thao’s testimony in 

lieu of the recording itself affected the jury’s verdict.7In any event, as we have stated, 

7 Appellant has not contended the recording itself would have been inadmissible for 

any reason. Below, he moved to exclude the sound recording based on “multiple 

discovery violations and substantial prejudice to [appellant].” (Emphasis omitted.) In 

ruling on this motion, the trial court concluded there was no discovery violation, as 

appellant was provided the recording and the police report containing the portions of the 

recording Thao found relevant and the translations of those portions. Appellant does not 

contend on appeal this ruling was erroneous. In addition, any potential undue prejudice 

from irrelevant portions of the recording could have been mitigated by playing only the 

relevant portions; the fact that the trial court only allowed Thao to testify to the relevant 

portions is a good indicator that prejudicial irrelevant portions would not have been 

played for the jury. 
21.

the admissions, whether they were presented through Thao’s testimony or through 

playing the recording for the jury, were not a large part of the People’s case when viewed 

in context of the totality of the evidence, contrary to appellant’s contention. 

Second, we acknowledge, as appellant points out, that the jury requested readback 

of Thao’s testimony. Appellant interprets this as the jury placing particular importance 

on it; however, based on the context of this request, we decline to make the same 

interpretation. We note that while the jury was awaiting the readback of Thao’s

testimony, they informed the court one of the jurors was having trouble deliberating due 

to a cultural bias. The court did not address this concern until after Thao’s testimony was 

read, at which point, the court concluded the juror was refusing to deliberate, excused 

that juror, and replaced them with an alternate juror. The jury was then instructed that 

they “must set aside and disregard all past deliberations and begin [their] deliberations all 

over again” and “decide this case as if those earlier deliberations had not taken place.” 

Because the readback was requested and delivered before the jury began deliberations 

anew, we cannot rely on the jury’s request for readback as evidence the jury found it 

important. Even if the request had not occurred before the jury restarted their 

deliberations, we note several circumstances of Thao’s live testimony that may have 

made it difficult for the jury to follow, necessitating a readback. Thao’s testimony was 

given via Zoom for COVID-19 related reasons, and there were several times throughout 

Thao’s testimony that it was noted in the record that he “froze” or had audio issues. We 

also note Thao’s testimony was replete with overruled defense objections. We do not in 

any way fault defense counsel for wanting to make his record but only point out that this, 

along with the Zoom issues, could have been distracting to a jury trying to parse out the 

substance of Thao’s testimony. Based on these circumstances, it is not surprising in the 

least the jury would want a readback of the testimony to simply understand it rather than 

because it held significant importance to its view of the People’s case. 
22.

For these reasons, we conclude the court did not err by denying appellant’s new 

trial motion. 

DISPOSITION

The judgment is affirmed. 

 DE SANTOS, J.

WE CONCUR:

LEVY, Acting P. J.

POOCHIGIAN, J.