People v. Nguyen

• Decision Date: 28 December 1993
• Docket Number: Nos. C012228,C012329 and C012983,s. C012228
• Citation: 26 Cal.Rptr.2d 323,21 Cal.App.4th 518
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Thiep Van NGUYEN et al., Defendants and Appellants.

Page 323

26 Cal.Rptr.2d 323

21 Cal.App.4th 518

The PEOPLE, Plaintiff and Respondent, v. Thiep Van NGUYEN et al., Defendants and Appellants.

Nos. C012228, C012329 and C012983.

Court of Appeal, Third District, California.

Dec. 28, 1993.

Certified for Partial Publication ^*

Review Denied March 31, 1994.

Rodger P. Curnow, Richard L. Rubin, Oakland and Diane Berley, Woodland Hills, under appointments by the Court of Appeal, for defendants and appellants.

Daniel E. Lungren, Atty. Gen., George Wiliamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Roger E. Venturi and Ward A. Campbell, Deputy Attys. Gen., for plaintiff and respondent.

SPARKS, Acting Presiding Justice.

Defendants Thiep Van Nguyen, Ahn Van Tran, and Dung Van Nguyen were each sentenced to state prison after suffering criminal convictions for multiple counts of robbery (Pen.Code, § 211 [unless otherwise specified further section references are to the Penal Code] ), one count of genital penetration with a foreign object in concert (§§ 264.1, 289), and one count of being accessories to genital penetration with a foreign object in concert (§ 32), based upon two separate incidents that occurred on December 4, 1990. This appeal followed. ¹

In the published portion of this opinion we consider defendants' contentions that (1) genital penetration with a foreign object cannot be a natural and probable consequence of robbery and the trial court erred in instructing the jury on the liability of an aider and abettor for the natural and probable consequences We conclude that the evidence does not support defendants' convictions as accessories (§ 32), or the special findings that Dung Nguyen personally used a firearm (§ 12022.5), and will reverse those convictions and findings. These conclusions require modification of defendants' sentences with a net reduction in Dung Nguyen's total unstayed prison term but with no change in the total unstayed prison terms of Thiep Nguyen and Ahn Tran. We reject defendants' other contentions and will affirm the judgments as modified.

of the act aided and abetted; and (2) the evidence does not support their convictions for being accessories to genital penetration with a foreign object in concert. In the unpublished portion we address defendants' claims that (1) the evidence does not support the finding that defendant Dung Nguyen was present during the perpetration of the crimes; (2) the evidence does not support the special findings that defendant Dung Nguyen personally used a firearm (§ 12022.5) in the commission of four of the robberies; (3) the trial court failed to state separate reasons for imposing full, separate and consecutive sentences (§ 667.6, subd. (c)), for the sexual offense; (4) the sentences of Thiep Nguyen and Ahn Tran violate the double-the-base-term limitation of section 1170.1, subdivision (g); and (5) the court failed to state appropriate reasons for imposing consecutive sentencing.

THE CRIMES

Nancy B. is the owner of a tanning salon in Sacramento. In the late afternoon of December 4, 1990, three young Vietnamese men knocked on the door of the salon and sought admittance, saying they wanted massages. Through an opening in the door Nancy told them that she did not provide massages and that at any rate they were too young for her services. After the men left the front door Nancy noticed a number of young men prying open the back door. The door was forced open and eight young men, seven of whom had guns, burst in. The one intruder who did not have a gun appeared to be of mixed ancestry, part Black and part Asian.

The intruders demanded money. Nancy was threatened, struck with guns, pushed onto floor, and then tied up with a telephone cord. A jacket was placed over her head. Three men held her down, then three other perpetrators exchanged places and held her down. While she was held down someone pulled her pants down, pushed a gun into her vagina, and threatened to fire it if she did not give up her valuables. The gun was kept in her vagina for 10 to 15 minutes. Eventually the intruders removed the gun, put a breath-spray canister into Nancy's vagina, and left. During the incident the intruders had ransacked the business and stolen money and jewelry.

Shortly after the incident at the tanning salon, a group of young Asian men forced their way into a relaxation spa in Sacramento. The modus operandi was similar to that employed in the tanning salon incident. Two men sought admittance purportedly to partake of the services offered and then forced the door open when the proprietor, Chung, C., sought to examine their identification. Up to nine young men then entered, forced the occupants to lie on the floor, bound them with tape, and put covers over their heads. Since the occupants were caught by surprise and their eyes were covered, they did not get a complete view of all of the perpetrators, but they were able to see that at least three of the perpetrators had guns. The perpetrators ransacked the business and stole money, jewelry and other personalty from the occupants. During the incident one occupant, Kyuok W., was fondled and sexually violated with a finger.

At the approximate time of the relaxation spa incident, a neighbor observed a large dark car occupied by several young Asian men stop in front of her house. A small blue Honda occupied by several young Asian men then stopped in front of the dark car. The young men, about nine in all, got out of the cars, talked, and then walked toward the spa. The blue Honda was left on the street overnight and was impounded the following Shortly after the relaxation spa incident, police officers encountered defendants Dung Nguyen and Thiep Nguyen attempting to hitchhike south on Stockton Boulevard, not far from the relaxation spa. Thiep Nguyen was wearing a baseball cap which had been stolen from one of the occupants of the spa and which was identifiable from stains the owner had gotten on the hat while painting. Dung Nguyen was in possession of a key to the blue Honda that was left at the scene of the relaxation spa incident. In addition to large amounts of cash, Thiep and Dung each were in possession of jewelry that had been stolen from occupants of the relaxation spa and Dung had jewelry that had been stolen from Nancy B. during the tanning salon robbery. Shortly after they were detained, Nancy B. made a field identification of Thiep and Dung as participants in the tanning salon robbery and later identified Thiep and defendant Ahn Tran in a photographic lineup but she could not identify any of the defendants at trial. At trial Kyouk W. identified Thiep Nguyen as one of the participants in the relaxation spa incident. In a photographic lineup Kyouk and another victim from the relaxation spa identified Dung Nguyen as a participant.

morning. When it was impounded, a gun was discovered on the front floor of the car. The owner of the car testified that he had loaned it to defendant Dung Nguyen and that he had not returned it.

Several hours after the incidents police officers conducted a search of the residence of defendant Ahn Tran. The officers recovered a large amount of cash and some jewelry that had been stolen during each of the incidents. Tran was arrested and made a statement, later retracted, in which he admitted being present at each of the incidents and said that he was given cash and jewelry to hold.

Based upon these incidents defendant Thiep Nguyen was found guilty of five counts of robbery (§ 211), in which he was armed with a firearm (§ 12022, subd. (a)); one count of genital penetration by a foreign object in concert (§§ 264.1, 289); and one count of being an accessory to genital penetration with a foreign object in concert (§ 32). Defendant Ahn Tran was found to be guilty of five counts of robbery (§ 211), in which he was armed with a firearm (§ 12022, subd. (a)); one count of genital penetration with a foreign object in concert (§§ 264.1, 289); and one count of being an accessory to genital penetration with a foreign object in concert (§ 32). Defendant Dung Nguyen was found to be guilty of five counts of robbery (§ 211), in which he was armed with a firearm (§ 12022, subd. (a)); one count of genital penetration by a foreign object in concert (§§ 264.1, 289); and one count of being an accessory to genital penetration with a foreign object in concert (§ 32). In the four robbery counts arising out of the incident at the relaxation spa defendant Dung Nguyen was found to have personally used a firearm. (§ 12022.5.) In a bifurcated proceeding defendants Thiep Nguyen and Ahn Tran admitted that their offenses were committed while they were released on bail. (§ 12022.1.) Sentencing of Thiep Nguyen and Ahn Tran included sentencing upon their convictions for the offenses for which they were on bail when these crimes were committed.

DISCUSSION

I

Each of the defendants contends that the trial court erred in instructing the jury on the liability of an aider and abettor with respect to the sexual offenses. ² Specifically The test for determining whether instructions on a particular theory of guilt are appropriate is whether there is substantial evidence which would support conviction on that theory. (People v. Houts (1978) 86 Cal.App.3d 1012, 1019, 150 Cal.Rptr. 589.) To determine whether there is substantial evidence to support a conviction we must view the record in a light most favorable to conviction, resolving all conflicts in the evidence and drawing all reasonable inferences in support of conviction. We may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable factfinder could find the defendant to be guilty on the theory presented. (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.) On the record presented we find ample evidence to support defendants' convictions for the sexual offense as the natural and...