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People v. Keo

California Court of Appeals, Second District, Seventh Division

September 23, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
NGOUNSAY KEO, Defendant and Appellant.

          APPEAL from a judgment of the Superior Court of Los Angeles County No. NA103998, Gary J. Ferrari, Judge. Affirmed.

          Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

          FEUER, J.

         Ngounsay Keo appeals from a judgment entered after a jury convicted him of the second degree murder of his girlfriend, Karina Duch, the mother of his two sons, 15-year-old S.L. and eight-year-old S.K.[1] The jury also found Keo guilty of making a criminal threat on an earlier occasion, and found true the special allegation he used a deadly or dangerous weapon, a knife, in the commission of the murder. Keo contends the trial court erred in admitting statements he made while in custody to a social worker performing an investigation in a dependency proceeding filed with respect to S.L. and S.K. He argues the admission of the statements violated his Fifth and Sixth Amendment rights because the social worker failed to provide a warning under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and interviewed him without his attorney present. Keo also asserts his statements were privileged under Welfare and Institutions Code section 355.1, subdivision (f), [2] as “testimony” in a dependency proceeding. He urges us to find the statements were privileged, even if they do not qualify as testimony, to protect his due process rights because he was forced to choose between protection of his parental interests in the dependency proceeding and his right not to incriminate himself in the criminal case.

         We are troubled by the admission of statements Keo made to the social worker without an attorney present while he was in custody. But neither section 355.1, subdivision (f), nor the United States and California Constitutions bar use of the statements in his criminal case. It is up to the Legislature to address in the first instance whether section 355.1, subdivision (f), should be expanded to protect out-of-court statements made by a defendant to a social worker. Unless the Legislature decides as a matter of policy that protection is warranted, it is up to the defendant, with the advice of his or her attorney in either the criminal case or dependency proceeding, to decide whether to discuss the facts of the alleged crime with the social worker, or to wait until the dependency hearing to testify, at which time the statutory privilege would apply. We affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         A. The People’s Case

         1. Events leading up to the homicide

         Keo and Duch were in a relationship for more than 20 years, although they were never legally married. In early 2016 they lived in a one-bedroom apartment with S.L. and S.K. In 2016 the relationship soured, and Keo became more aggressive toward Duch. Duch began communicating with other men on a “messenger” phone application.

         Sometime in February or March 2016 Keo slapped Duch on the face. S.K. was in the room at the time. S.L. was in the living room and heard Keo yelling at Duch in the bedroom, followed by the sound of a slap. When S.L. entered the room to see what had happened, he saw Duch crying and holding her cheek, which was red. S.L. physically restrained Keo to prevent him from harming Duch. Keo was drunk at the time. That same night S.L. was present when Keo threatened Duch, S.L., and S.K., saying, “You’re all worthless and I’ll kill you all and then myself.” S.L. was scared. S.K. was not there, but Duch told him about the threat later. On March 30 Duch went to the police station and filed a criminal threats report.

         On April 5, 2016, while Keo was at work, Duch took S.L. and S.K. from their apartment, and they went to live in Duch’s family home. That afternoon Keo came to the family home. He was angry and acted in a threatening manner; he demanded to take the family back to the apartment. Duch and the boys refused, and Keo left. The next day Duch obtained a temporary restraining order against Keo. On April 7 a sheriff’s deputy personally served Keo with the restraining order.

         2. The homicide

         Despite the restraining order, in August 2016 Duch and S.K. visited Keo, and they went together to watch the Cambodian New Year’s day parade. Keo and Duch watched as S.K. danced in the parade. A few days later, on the morning of August 13, Duch and S.K. went to their former apartment to pick up a note from S.K.’s doctor. Keo was there when they arrived. Keo told S.K. to go play at his friend’s apartment next door, and S.K. left.

         While S.K. was in the neighbors’ apartment, he heard a loud scream from Duch and heard her yell “stop.” S.K. asked his friend’s mother, Mariela Melgar, to call 911. Melgar did not call because she did not hear anything. But she took S.K. and her two children to Keo’s apartment on their way to the store. Keo opened the door a little and S.K. asked about his mother. Keo said she was sleeping. Keo went back into the apartment, and Melgar and the children left. When they returned, they again stopped by Keo’s apartment. Keo cracked the door open and said Duch was still sleeping. S.K. and the children returned to Melgar’s apartment to play.

         At some point, S.K. returned to Keo’s apartment. He knocked six times, but there was no answer. The door was unlocked, and S.K. entered. He saw Keo lying on the floor in the living room, with his internal organs hanging out of his stomach and blood flowing from his stomach. There was a butcher’s knife by Keo’s side. S.K. was scared and ran back to Melgar’s apartment. Melgar went into Keo’s apartment, saw him with his stomach “sliced open, ” and called 911.

         Long Beach Police Officer Benjamin Cobb arrived at the scene with his partner and saw Keo lying on the floor in a pool of blood with a large kitchen knife in his right hand. Keo was conscious and started swinging the knife. When asked, Keo said Duch was “in the bedroom sleeping.” Officer Cobb entered the bedroom and saw Duch with multiple lacerations to her chest and upper torso. She had a large laceration on her stomach and her organs were exposed. Duch was pronounced dead at the scene. An autopsy showed multiple stab wounds to the abdomen, upper chest and lungs, arms, and right hip. The deputy medical examiner opined the wounds were made by an object with a sharp blade, were not self-inflicted, and could have been caused by the knife held by Keo.

         Keo was transported to the hospital, where he underwent surgery for his injuries.

         3. The dependency investigator’s interview with Keo

         On May 11 or 12, 2016, while Keo was in custody recovering in the medical unit of the jail, he was interviewed by Julia Han, a social worker who served as a dependency investigator with the Los Angeles County Department of Children and Family Services (Department).[3] Han spoke to Keo using a telephone in an interview room with a glass partition between them. At the time Han spoke with Keo, Han was aware a criminal case was pending and a dependency petition had been filed. Keo had counsel appointed in this case, but not the dependency proceeding.[4] Keo was alone, and it is undisputed Han did not provide a Miranda warning. Han testified her role as a dependency investigator was to investigate a petition filed in dependency court by interviewing all the parties to “gather evidence” and prepare a report to the dependency court. As part of that role, Han assessed the risk to the children and made a recommendation as to whether the parent should retain custody and parental rights over the children. Prior to interviewing Keo, Han called the prosecutor to learn the criminal charges against Keo and the next court date. Han and the prosecutor did not discuss the details of the criminal case, and Han did not tell the prosecutor she was planning to interview Keo.

         Although English was not Keo’s native language, Han spoke to him in English, and he responded in English. Keo appeared to understand Han’s questions. At the outset of the meeting, Han read Keo the allegations in the dependency petition, including that he had murdered Duch and endangered S.K., who saw Keo with his injuries. Han then “asked him about the incident.” Keo told Han he killed his wife, then tried to kill himself. Keo repeated that S.K. “was not there.” He added as to S.K. being present that he would “never do [a] stupid thing like that.” According to Han, Keo “said he killed his wife because the wife tried to take his two sons away from him and that his sons are his whole life and his soul and he cannot live without his sons.” Keo said he placed a knife on Duch’s “belly” two times. Duch screamed and told Keo, “Don’t do that.” Keo told Han he attempted to kill himself, but the police arrived first.

         Keo admitted he previously threatened Duch that if she took S.L. and S.K. away from him, “something bad would happen.” Keo added, “If she takes away my sons, then we all die.” He added, “I told her, I told her, but she did not listen.” Han testified Keo was not remorseful, but rather, “He sounded as if that was the rightful thing that he did [be]cause he already warned her or told her not to take his sons away from him.” However, when asked what he wanted to say to his children, he “apologized for the incident.” Keo also admitted he had hit Duch on one prior occasion with his sons present after he learned Duch had a boyfriend. Keo said he “pushed [his] wife’s face and slapped her on her forehead.”

         After interviewing Keo, Han obtained a copy of the police report, which she reviewed before preparing her report to the dependency court. Han did not inform the prosecutor or the police about what Keo said, or that she interviewed him. However, an attorney representing the Department, after learning at a dependency hearing of Keo’s statements to Han, contacted the prosecutor to inform her of the statements. A year later, in response to a subpoena, the prosecutor obtained a copy of the jurisdiction and disposition report filed in the dependency proceeding, which contained Keo’s statements. Han testified to the statements at trial.

         B. The Defense Case

         Keo testified in his own defense. In March 2016 S.L. showed Keo text messages between Duch and two men. Keo begged Duch to stop communicating with the men. Keo became depressed, drank half a bottle of whiskey, and got “very drunk.” He and Duch argued about the texts, she took the bottle away from him, and he moved his arm in a manner such that the back of his hand hit Duch on the cheek. Both boys were in the living room where this happened. Keo and Duch went into the bedroom, and S.L. came in, grabbed Keo, and dragged him out of the room. Keo and Duch argued, and he told her he would kill all of them because he was concerned he would lose Duch and his sons.

         The day of the murder, Keo returned from work at 10:00 in the morning. After S.K. went to Melgar’s apartment, Keo implored Duch to take him back, but she said 23 years was “enough, ” and she was taking the children. Keo “lost all [his] memory, [and] went to grab the knife without knowing it.” He retrieved the knife from the kitchen, returned, and stabbed Duch. Duch was initially sitting on the couch, but when Keo returned with the knife, she stood up and raised her hands to protect herself. He “lost [his] mind....” Duch screamed and told him to stop, then she fell to the floor. Keo dragged Duch into the bedroom so S.K. would not see what had happened. By this time, Keo believed Duch was dead. Keo closed the bedroom door and wrote a suicide note for his children. Then he cut himself and fell to the floor.

         Keo underwent surgery, as part of which he received 32 staples. At the time of Han’s interview, Keo was not feeling well, his stab wounds were fresh, and he was in a ...


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