People v. Nguyen

Decision Date28 March 2022
Docket NumberD078477
CourtCalifornia Court of Appeals Court of Appeals
PartiesTHE PEOPLE, Plaintiff and Respondent, v. THIEN DUC NGUYEN, Defendant and Appellant.


APPEAL from a judgment of the Superior Court of San Diego County No SCD286028, Michael S. Groch, Judge. Reversed.

Aurora E. Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.


A jury found Thien Due Nguyen guilty of committing arson of an inhabited structure or inhabited property (Pen. Code, § 451, subd. (b)). [1] The trial court sentenced Nguyen to a three-year prison term.

Nguyen makes a series of arguments challenging the jury instructions and the trial court's evidentiary rulings. He also contends that the prosecutor committed prosecutorial error and that the trial court erred in declining to order mental health diversion (§ 1001.36). We conclude that the trial court prejudicially erred by failing to properly instruct the jury on the concept of malice in law in response to questions asked by the jury during deliberations. We accordingly reverse the judgment.


On the afternoon of April 24, 2020, the fire department responded to a fire inside the home where Nguyen was living. The fire started in the home's bathroom and burned most of a bathroom vanity. The fire also caused damage to adjacent rooms and to the ceiling of an outside patio overhang connected to the house. When authorities responded to the fire, Nguyen was found sitting under a tree a few blocks away with three lighters in his pockets. Nguyen was taken to the police station for questioning and voluntarily gave a statement to a police detective, during which he stated that he brought fire from an outside fire into his bathroom in order to burn "evil" and "spirits," but that the fire got out of control because he failed to keep an eye on it or put it out with water.

Nguyen was charged with one count of arson of an inhabited structure or inhabited property (§ 451, subd. (b)).

At trial, the jury heard testimony that the home where Nguyen lived had been sold by Nguyen's sister in January 2020 and that the man who bought the property was in the process of trying to get Nguyen to move out of the house. The gas and electricity in the house were turned off. As the new owner testified, in February 2020, he posted a notice on the house informing Nguyen that he was required to move out in 30 days, and at some point he spoke personally with Nguyen telling him he needed to leave. According to the new owner, a court case to obtain an order evicting Nguyen from the home was still pending, as its resolution had been delayed during the pandemic.

The jury also heard testimony from a building inspector with the City of San Diego's code enforcement division who visited Nguyen's home on at least two occasions. On April 1, 2020, the building inspector told Nguyen he had to leave the house due to building code violations and substandard conditions. Nguyen responded that he was not leaving and that he owned the house. On April 17, 2020, the building inspector again visited and spoke with Nguyen. On that date, Nguyen was burning brush and branches in the backyard. The inspector told Nguyen to extinguish the fire, and Nguyen did so by using a garden hose. The building inspector testified that on that date, Nguyen calmly said "he was not leaving the place until he burns it down."

During trial, the prosecutor played Nguyen's interview with the police detective. [2] Nguyen told the police that he had lived at the house for 11 years. His father and sister had moved out several months earlier. Nguyen was aware that his sister was planning to sell the house, but he stated that his sister needed his permission because the house was his, and he complained that he had not gotten any money from a sale of the house. Nguyen acknowledged that he had received notice that he had to vacate the house, but his response was "that's my house."

Nguyen said that he brought fire into the bathroom because "I tried to burn something," "I want to burn something," but then forgot to put the fire out with water. Nguyen stated, "I walk away, then the fire start up." Nguyen explained that when he saw the fire burning, he went to find a friend with a phone to call the fire department. Nguyen's friend was not home, so he sat down away from the scene so he didn't have to deal with the firefighters and police officers who had responded.

When the detective inquired about what Nguyen wanted to burn inside the house, Nguyen explained he wanted to burn "something evil," "evil stuff," "spirits." "I just light some fire, burn some evil." Nguyen said that he was burning a fire outside his house to boil water due to the lack of utilities at the house, and he brought some of that fire inside the house. "I bring the fire from outside, inside." According to Nguyen, he had done the same thing in the bathroom three or four times before.

When the detective asked Nguyen whether he wanted to burn down his house, the following exchange occurred:

" [Q:] And you wanted to burn something. Did you want to burn the house down?

"[A:] Yeah, sometimes.

"[Q:] Why?

" [A:] Because I just have too much.

"[Q:] Because of why?

" [A:] Too much bullshit in the house.

" [Q:] Okay. You want to tell me about what's been going on with the house?

"[A:] That's my house. (Unintelligible) anything.

" [Q:] You own the house.

"[A:] Yeah.

" [Q:] Why would you burn a house down that you own, though, sir?

" [A:] That's why I'm crazy. Why I'm burn the house? (Unintelligible) I live (unintelligible) house.

" [Q:] That's what you told me.

"[A:] Um-hm.

"[Q:] Okay.

" [A:] You think you going to burn your house?"

In his trial testimony, the detective stated that he understood Nguyen to be expressing during this exchange that "he was not crazy," and" [i]f he burned his house, he wouldn't have a place to live."

A fire engineer for the City of San Diego who investigated the fire at Nguyen's residence testified about the result of his investigation. He also described the photographs that he took of the scene, which were displayed for the jury. As the fire engineer explained, he determined that the fire started at the right-side base of the bathroom vanity when an open flame came into contact with it. He also described finding burned pieces of vegetation such as branches and twigs that had been on top of the vanity when it burned, and there was a half-burned palm frond in the bathroom. As shown by the photographs of the scene, and as described by the fire engineer, a collection of still-unburned sticks and branches were located on the left side of the bathroom vanity between it and the toilet. The vanity burned almost all of the way to the ground.

The fire engineer testified that he classified the fire as "incendiary," which he defined as "a fire intentionally ignited in a place and at a time where there should not be a fire." (Italics added.) He also explained that "the cause of the fire was an open flame device that was brought in contact with the vegetation that was in the bathroom." [3] Although the fire engineer did not determine the source of the open flame, he agreed that a burning branch was one type of open flame. He also agreed that the fire scene was consistent with burning vegetation being brought into the house from outside, left on top of the vanity, and then falling over between the vanity and the wall.

After engaging in deliberations, during which the trial court responded to multiple questions about the malice element of arson, the jury found Nguyen guilty of arson of an inhabited structure or property (§ 451, subd. (b)). The trial court sentenced Nguyen to a lower-term prison sentence of three years. [4]


A. Nguyen's Challenge to the Instructions on the Element of Malice

We begin with an issue that is dispositive to this appeal: Nguyen's challenge to the jury instructions on the malice requirement for arson.

As we will explain, although the jury was instructed with the standard instruction on the elements of arson of an inhabited structure, the jury was additionally instructed in response to a series of questions that it asked during deliberations. Those additional instructions were erroneous because they failed to adequately define the technical legal terms used in the instructions, even though a clear definition of malice in law, which would have been highly relevant to the jury's deliberations, is contained in our Supreme Court's case law and should have been provided to the jury.

1. Applicable Legal Standards for Arson

We commence our discussion with the applicable legal standards for the offense with which Nguyen was charged.

The offense of arson of an inhabited structure or inhabited property is set forth in section 451, subdivision (b), as follows: "A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property.... [If] (b) Arson that causes an inhabited structure or inhabited property to burn is a felony punishable by imprisonment in the state prison for three, five, or eight years." (§ 451, subd. (b), italics added.)

The crime of unlawful burning of an inhabited structure or inhabited property is a lesser included offense, and the jury was also instructed on that offense. The relevant statute states: "A person is guilty of...

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