People v. Le
| Decision Date | 30 March 1984 |
| Docket Number | Cr. N |
| Citation | 200 Cal.Rptr. 839,154 Cal.App.3d 1 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. TUNG THANH LE, Defendant and Appellant. PEOPLE of the State of California, Plaintiff and Respondent, v. BO QUOC PHAM, Dung Quoc Pham, Minh Quang Nguyen, Defendants and Appellants. os. 14754, 12674. |
Defendants appeal their convictions of kidnapping for robbery (Pen.Code, § 207) 2, forcible rape in concert (§ 264.1), forcible oral copulation in concert (§ 288a), attempted oral copulation in concert (§§ 664/ 288a), attempted sodomy in concert (§§ 664/286), robbery (§ 211) and assault with intent to commit rape (§ 220). Their consolidated appeals challenge several trial court rulings and raise various sentencing issues. Arguments raised by individual defendants are treated separately, while those raised by several defendants are combined and analyzed in a single discussion.
I.
Defendants were convicted of the following crimes committed against six victims:
1. Tamara
Tamara (age 20) was walking near Disneyland at 10:30 p.m. on July 7, 1980 when four oriental men in a car asked her for directions. When she approached the car, the men asked her for a date. Tamara said she would think about it and asked for a ride to her hotel. She identified Nguyen, Bo Pham and Dung Pham as passengers of the car.
Once inside the car, Nguyen pointed a large barrelled pistol at Tamara, threatened to kill her if she wouldn't be quiet and told her they were going to Mexico. Almost an hour later, the driver (Bo Pham) stopped the car at a construction site. The men folded the back seats of the car down to form a flat area. Tamara was ordered to take off her clothes and when she refused, Nguyen touched her leg with a knife then pointed the pistol between her legs and told her he would blow her vagina away if she continued to refuse to undress. The men pulled her clothes off and forced her to have intercourse with them ten times, attempted to sodomize her once, and attempted to have her orally copulate them twice. When Tamara told Nguyen she was going to get sick on him, he threw her clothes and her purse at her and offered to drive her home. Tamara declined the offer and was pushed out of the car as it started to move. As the car drove away, Tamara noticed the rear license plate was covered with paper. She also noticed her purse had been opened and the $160 to $180 she previously had in her purse was gone.
2. Lisa
At approximately 10:00 p.m. on July 11, 1980, two oriental men asked Lisa (age 19) for directions to Harbor Boulevard. As she reached for pen and paper to draw a map, the men picked her up and forced her into a car occupied by two other oriental men. Lisa identified the men as the four defendants. As they drove away, the man in the front seat pointed a large barrelled pistol at Lisa and told her he would kill her if she did not stop screaming.
The car was parked in an orange grove approximately 25 minutes later. The men folded the back seats down to make a flat area and pulled Lisa's clothes off her. She was forced to have intercourse five times and orally copulate one of them. In addition, she was subjected to three attempts of oral copulation and one attempt of sodomy. The men pushed Lisa out of the car in Huntington Beach close to where she was abducted. She refused to accept money they offered her.
3. Linda
Linda (age 15) was in a phone booth at 12:30 a.m. on July 19, 1980 when two oriental men approached her and asked directions. As she asked to see their map, the men grabbed her and threw her into the back seat of a car occupied by two other oriental men. Linda identified the defendants as the four men in the car. She testified the driver twirled a pistol as he drove. The car was driven into an orange grove, the back seats were folded down, and Linda was forced to undress. She was forced to have intercourse five times and forced to orally copulate two men while two others had intercourse with her. She was then driven back into town and released.
4. Lydia
At 1:00 a.m. on August 2, 1980, Lydia (age 21) was standing in front of the Anaheim Convention Center when an oriental man grabbed her and put her into the back seat of a car occupied by three other oriental men. Lydia identified Le, Bo Pham and Dung Pham as three of the men inside the car. She testified a large barrelled pistol was pointed at her as the car was driven to a secluded area. The back seats of the car were folded down, and Lydia was told to undress. She was forced to have intercourse three times before she was driven back to Anaheim. At trial, she identified a bracelet that was found in Bo's car.
5. Cori
On August 8, 1980, Cori (age 18) walked to the restaurant where she worked to pick up her uniform. A car pulled up beside her and an oriental man asked her for directions. A second man got out of the car and the two men grabbed Cori and forced her into the back seat of the car. Two other oriental men were inside the car. Cori identified the defendants as the four men in the car. The man in the front seat pointed a gun at her and said he would hurt her if she would not be quiet. Cori was driven to an orange grove, the back seats of the car were folded down, and she was forced to undress. Cori was forced to have intercourse five times and to orally copulate the men seven times. The men then drove her back into town and gave her $60.
6. Julie
Julie (age 17) was forced into a car with four oriental men on the evening of August 11, 1980. She identified Le, Bo Pham and Dung Pham as being inside the car. Julie was driven at gunpoint to a grove of trees where the back seats of the car were folded down, and she was forced to take her clothes off. Because Julie was menstruating, she was wearing a tampon. The men asked her what kind of disease she had and she told them it was venereal disease. She was forced to orally copulate two men before she was driven back to Costa Mesa and dropped off.
Three men were arrested the next day when they appeared at the restaurant where Cori worked and asked for her. Cori identified two of them as the men who raped her. The other two defendants were apprehended from leads given by the first two defendants arrested.
After a jury trial, the defendants were found guilty on most of the 68 counts charged. The jury also found a principal was armed in 38 of the offenses, and the defendants acted in concert during the rapes. The defendants' letters to the trial court, deemed to be motions for a new trial, were denied, and they filed timely notices of appeal.
II-VI *
VII.
Defendants raise several issues relating to the application of sections 667.6, 1170.1, subdivision (i), and section 12022.3, subdivision (b). 6 Pursuant to those statutes, Bo Pham and Dung Pham received a sentence of 9 years for the rape conviction on Count 12; full, separate consecutive terms totaling 87.5 years for 7 rape convictions, 5 oral copulation convictions and 1 attempted oral copulation conviction; and 22 years for enhancements to be served consecutively to the 9 year rape conviction sentence. They each received a total term of imprisonment of 118.5 years. Minh Nguyen received a sentence of 9 years for the rape conviction on Count 12; full, separate consecutive terms totaling 73.5 years for 7 rape convictions, 2 oral copulation convictions and 1 attempted oral copulation conviction; and 18 years for enhancements to be served consecutively to the 9 year rape conviction sentence. His total prison term amounts to 100.5 years. Tung Le received a sentence of 7 years for his rape conviction on count 28 and full, separate consecutive terms amounting to 63 years for 6 rape convictions and 4 oral copulation convictions. His total prison term equals 70 years. Sentences on all other counts were stayed for all four defendants. The defendants now contend: (1) the trial court committed several sentencing errors; (2) the length of their sentences constitutes cruel and unusual punishment; and (3) section 667.6 violates their rights to equal protection of the law.
The first issue raised is whether the trial court erred in failing to state its reasons for imposing full, separate, and consecutive sentences under section 667.6, subdivision (c). Because the trial court has the discretion to sentence a defendant under section 667.6, subdivision (c) rather than under section 1170.1, defendants correctly contend the decision to sentence under 667.6, subdivision (c) is a sentence choice for which the court must state its reasons. (People v. Belmontes (1983) 34 Cal.3d 335, 347, 193 Cal.Rptr. 882, 667 P.2d 686; People v. Thompson (1982) 138 Cal.App.3d 123, 126, 187 Cal.Rptr. 612.)
In Belmontes, the California Supreme Court held section 667.6, subdivision (c) is a discretionary provision to be imposed in lieu of the term provided in section 1170.1. Therefore, the record must reflect "recognition on the part of the trial court that it is making a separate and additional choice in sentencing under section 667.6, subdivision (c)." (People v. Belmontes, supra, 34 Cal.3d at p. 348, 193 Cal.Rptr. 882, 667 P.2d 686.) The court suggests the following procedure for the trial court in deciding which sentencing scheme to...
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