People v. Nguyen

• Decision Date: 04 May 2000
• Docket Number: No. S072471.,S072471.
• Citation: 95 Cal.Rptr.2d 178,997 P.2d 493,22 Cal.4th 872
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Tuan Van NGUYEN, Defendant and Appellant.

95 Cal.Rptr.2d 178

22 Cal.4th 872

997 P.2d 493

The PEOPLE, Plaintiff and Respondent, v. Tuan Van NGUYEN, Defendant and Appellant.

No. S072471.

Supreme Court of California.

May 4, 2000.

Rehearing Denied July 12, 2000.¹

John L. Staley, under appointment by the Supreme Court, San Diego, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Ronald A. Bass, Assistant Attorney General, Catherine A. Rivlin and Christina V. Kuo, Deputy Attorneys General, for Plaintiff and Respondent.

WERDEGAR, J.

Defendant Tuan Van Nguyen was convicted in 1997 of violating Penal Code² section 209, subdivision (b), kidnapping for the purpose of robbery, otherwise known as aggravated kidnapping. We granted review and limited the issue on review to "whether the risk of harm required to elevate kidnapping to aggravated kidnapping may be a risk of psychological harm." (Italics added.) As explained below, we conclude the answer to this question is that it may.

FACTS

Julie Overacker rented a room in Thomas Savoca's house in San Jose. As she was unpacking her boxes, Tuan Van Nguyen (defendant) and Binh Nguyen (Binh) walked in. Binh pointed a gun at Savoca's head and ordered Overacker and Savoca to lie on the floor. Defendant ripped the telephone cord from the wall and used it to bind Savoca. Binh pointed the gun at Overacker and demanded money and jewelry. She complied. Not satisfied, Binh demanded more, pointing the gun at Overacker's temple. Overacker replied they could take anything in the house. She was led downstairs at gunpoint, at which time she noticed two additional men in the house. Three of the robbers went upstairs while Binh remained to guard Overacker. Overacker heard the three men looking through her belongings. Binh ordered her to close the blinds and turn off the lights. She complied. Binh then led Overacker back upstairs and placed her in a closet, while the robbers continued to rummage through the house. Binh announced the robbers would remove her from the house because she did not have anything they wanted. She offered her credit card. Binh declined, but asked whether she had an automatic teller machine (ATM) card. She said she did and was told to retrieve it. Binh also retrieved Savoca's ATM card, and both victims were made to reveal their personal identification numbers. The robbers then decided to leave Savoca tied up and take Overacker with them to a bank to use the ATM cards.

At this point the robbers had been in the house about 45 minutes. Binh, accompanied by defendant, led Overacker out of the house at gunpoint. She could see men carrying things out of the house and loading them into a car. Binh, defendant and Overacker got into Overacker's green Honda Accord, and the other two robbers followed in a brown hatchback. Once at the bank, Binh ordered Overacker to withdraw "all" her money. She withdrew $200 from the ATM, explaining to her assailants that withdrawals were limited to a daily maximum of $200. They returned to the house.

In the meantime, Savoca managed to free himself. He ran towards a neighbor's home, but hid when he saw Overacker's car return. When the robbers discovered Savoca was gone, they engaged in much shouting and quickly drove off, with Overacker still in the car. Binh told Overacker, "your boyfriend got away, he's very stupid, we told him we'd kill you."

Binh told Overacker to lie under the dashboard of the car and not look up and try to identify him or he would have her killed. She offered that Savoca had probably called the police so they should just let her go. Defendant initiated an animated discussion with his companions, apparently in Vietnamese, which Overacker took to mean he disagreed with her suggestion. They transferred their stolen goods from Overacker's car to the brown hatchback. Rather than release Overacker, however, the kidnappers forced her to the rear floor of the brown car while one of the robbers covered her eyes with his hands. They went to a convenience store, where the kidnappers engaged in another animated discussion. They eventually gave Overacker some juice and told her to drink it and go to sleep. Fearing the juice was drugged, Overacker pretended to drink and then feigned sleep.

The robbers then drove to a remote wooded area and told Overacker to wake up. Overacker believed they would kill her there. Instead, after another conversation among themselves, the kidnappers told her they would wait until after midnight so they could use the ATM cards again, whereupon they would release her. After midnight, they drove in Overacker's green Honda Accord to a different bank, where Binh attempted to use the stolen ATM cards. San Jose Police Officer Tomlin observed the green Honda, obtained confirmation that it belonged to Overacker, and radioed for assistance while he followed the car. When he identified himself, two kidnappers exited the car and ran in opposite directions.

Because the initial report involved four kidnappers and the green Honda had tinted windows that prevented Officer Tomlin from seeing inside the car, he waited about 45 seconds to ensure no more people would emerge from the car. Satisfied, he approached the car and found it empty except for Overacker, who was lying in a fetal position on the floor. She was "[v]ery distraught ... crying, shaken." Officer Tomlin testified he "could hardly get her out of the car." He estimated it took "up to two minutes" to coax Overacker from the car.

Defendant was charged, among other felonies, with violating section 209, subdivision (b), kidnapping Overacker for purposes of robbery. In closing argument, the prosecutor spoke to the nature of the compelled movement of the victim: "Where [the movement] becomes more than slight, brief or trivial is where they take her out of her own house on Palm Sunday, put her in her car, and drive her down to [the bank] to go rob her. [¶] I would submit to you, ladies and gentlemen, that at that point you have got enough movement at about the time they are out of that house, getting close to the car. The rest is just icing on the cake in that regard. [¶] The movement substantially increased the risk of harm to the person moved over and above that necessarily present in the robbery itself. And that means that you rob a person in their house. Obviously they are in danger. But when you take a person out of their house at gunpoint, you can see by the facts we saw here what can happen. They drove her around for close to two hours. They took her up in the foothills, in the woods someplace. [¶] Does that increase the risk of injury? Of course it does. The risk of harm? Ask Julie Overacker where she comes to that. That's pretty simple and pretty straightforward. Again, movement in the house, I would submit to you that that's incidental to the robbery itself. Once you get out of that front door with the intent to go to the ATM, we have kidnap for robbery."

Regarding the aggravated kidnapping charge, the trial court delivered the following instruction: "Kidnapping is the unlawful movement by physical force of a person without that person's consent for a substantial distance where the movement is not merely incidental to the commission of the robbery and where the movement substantially increases the risk of harm to the person moved, over and above that necessarily present in the crime of robbery itself. [¶] Kidnapping is also the unlawful compulsion of another person without that person's consent and because of a reasonable apprehension of harm, to move for a substantial distance where such movement is not merely incidental to the commission of the robbery and where the movement substantially increases the risk of harm to the person moved, over and above that necessarily present in the crime of robbery itself. [¶] Brief movements to facilitate the crime of robbery are incidental to the commission of the robbery. [¶] On the other hand, movements to facilitate the robbery that are for a substantial distance ... are not incidental to the commission of the robbery. [¶] In order to prove this crime, each of the following elements must be proved: [¶] ... [¶] 5. The movement substantially increased the risk of harm to the person moved, over and above that necessarily present in the crime of robbery itself." (Italics added.) After it had retired to deliberate, the jury sent out a question, asking whether the "harm" referred to in the phrase "The movement substantially increased the risk of harm to the person moved" could include "psychological harm." The trial court gave this reply: "Webster's defines harm as physical or mental damage." The jury found petitioner guilty of aggravated kidnapping as well as the other charged felonies.

DISCUSSION

In light of the jury's question about psychological harm and the trial court's response, defendant contends the jury may have relied on his infliction of such nonphysical injury to convict him of aggravated kidnapping. Because he contends section 209 is limited to forced movements of the victim that substantially increase the risk of bodily or physical harm only, he argues we must reverse his conviction for aggravated kidnapping.

In 1995, at the time defendant committed his crime, section 209, subdivision (b) provided: "Any person who kidnaps or carries away any individual to commit robbery shall be punished by imprisonment in the state prison for life with possibility of parole." (Stats.1990, ch. 55, § 3, p. 394.) Although the statute at that time had no express requirement that movement of the victim substantially increase the risk of harm to the victim, we held in 1969 that implicit in the history of section 209 was a requirement that—in order to constitute an aggravated kidnapping—the movement (or asportation) of the victim (1) could not be incidental to the robbery, and (2) must "substantially increase the risk of harm over and above that...