People v. Nguyen

• Decision Date: 25 April 1997
• Docket Number: No. H014026,H014026
• Citation: 63 Cal.Rptr.2d 173,54 Cal.App.4th 705
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 3088, 97 Daily Journal D.A.R. 5355 The PEOPLE, Plaintiff and Respondent, v. Dat Tan NGUYEN, Defendant and Appellant.

Page 173

63 Cal.Rptr.2d 173

54 Cal.App.4th 705, 97 Cal. Daily Op. Serv. 3088,

97 Daily Journal D.A.R. 5355

The PEOPLE, Plaintiff and Respondent, v. Dat Tan NGUYEN, Defendant and Appellant.

No. H014026.

Court of Appeal, Sixth District, California.

April 25, 1997.

Certified for Partial Publication. ^*

Rehearing Denied May 20, 1997.

Review Denied Aug. 20, 1997.

[54 Cal.App.4th 708] Manuel J. Baglanis, Under Appointment by the Sixth District Appellate Program, Cupertino, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Ronald S. Matthias, Supervising Deputy Attorney General, David D. Salmon, Deputy Attorney General, for Plaintiff and Respondent.

MIHARA, Associate Justice.

Defendant was convicted of petty theft with a prior (Pen.Code, § 666), and allegations that he had suffered two prior serious or violent felony convictions within the meaning of Penal Code section 667, subdivisions (b) to (i) were found true. He was committed to state prison for an indeterminate term of 25 years to life. On appeal, he asserts that (1) CALJIC 2.90 is inadequate because it does not define "abiding conviction," (2) the trial court prejudicially erred in giving CALJIC 17.42, (3) the trial court abused its discretion by refusing to reduce the conviction to a misdemeanor, (4) he must be sentenced under Penal Code section 666 rather than Penal Code section 667, subdivisions (b) to (i), (5) his prior convictions did not qualify for treatment under Penal Code section 667, subdivisions (b) to (i) because these convictions were suffered prior to the enactment of that statute, (6) Penal Code section 667, subdivisions (b) to (i) was not in effect at the time of his offense because this statute was not proper urgency legislation, (7) the evidence was insufficient to prove that one of his prior convictions was for a serious felony, (8) the restriction in Penal Code section 667, subdivisions (b) to (i) on conduct credits violates equal protection, (9) a remand is required because the trial court mistakenly believed that it had no discretion to strike one or both of the prior conviction allegations and (10) his punishment is cruel or unusual. We remand for the limited purpose of giving the trial court the opportunity to exercise its discretion under Penal Code section 1385. We do not reach defendant's cruel or unusual punishment argument due to the remand. However, we reject the remainder of defendant's contentions.

FACTS

At 6:15 p.m. on October 27, 1994, undercover security officers at a Safeway store in Sunnyvale saw defendant shoplift a large quantity of film and toiletries. Defendant was with another man. The two men conversed, and the other man went away with a cart. Defendant took eight packages of razor blades from the store shelf and placed them in his basket. The other man returned with a large quantity of film in his cart covered by some magazines. Film and toiletries are frequently stolen items because they are small and expensive. Defendant removed the items from his basket and the film from the other man's cart and placed these objects inside his shirt. In all, defendant concealed 12 packages of film, 8 packages of razors and a package of "Vicks Nyquil" in his shirt. These items had a total value of $182.79. The two men left the cart and the basket and proceeded to the store exit. They did not pay for the items. Two store security officers followed defendant and his compatriot out of the store. Defendant's compatriot saw the security officers and said Defendant was charged by information with a single count of petty theft with a prior conviction (PEN.CODE, § 666)¹. ² It was further alleged that he had suffered prior serious felony convictions for voluntary manslaughter (§ 192, subd. (a)) in 1988 and burglary of an inhabited dwelling (§§ 459, 460, subd. (a)) in 1994. Defendant testified on his own behalf at his jury trial. He asserted that he had recently met his compatriot, Hoang Tran, in a card room "when we were playing card[s]." ³ As defendant had no "place to stay," Tran let defendant stay in a room where several other men were smoking narcotics. Defendant did not like the smell in the room, so he asked Tran to take him somewhere else. Tran took him to the Safeway store in Sunnyvale. Tran told defendant to "do whatever I tell you to do, then we can get some money to rent the room and to buy some food to eat." Defendant claimed that he was hungry and tired and "my clothes were very dirty," so he did whatever Tran told him so that he could get some food. Tran would not let him take any food from the Safeway store. Defendant claimed that he had expressed his reluctance to steal to Tran, but Tran had told him "don't worry." Tran told defendant to tell the security officers that he did not know Tran, and defendant complied. Defendant admitted that he had suffered prior convictions for voluntary manslaughter, petty theft and first degree burglary. However, he claimed that the prior petty theft and burglary were "the same situation" as this offense; "I was trapped into it by friends."

                something to defendant.  Defendant "started running."   One of the security officers chased and caught defendant.  The other security officer detained defendant's compatriot, who had not run.  Defendant admitted taking the items and stated that he had done so to "pay for a room" and food.  Defendant's compatriot looked "a bit malnourished," but defendant was clean and "looks like he eats well."   The only money defendant had in his possession was 16 cents.  He also had a pager
                

The trial court instructed the jury that "[i]n your deliberations do not discuss or consider the subject of penalty or punishment. That subject must not in any way affect your verdict." The jury was also instructed on the definition of reasonable doubt with the standard revised version of CALJIC 2.90. Jury deliberations lasted less than an hour. The jury returned a verdict of guilt on the petty theft count, and it brought back true findings on both of the prior conviction allegations. The court committed defendant to state prison for an indeterminate term of 25 years to life. Defendant filed a timely notice of appeal.

DISCUSSION

A.-C. ^**

D. DEFENDANT IS NOT ENTITLED TO BE PUNISHED UNDER PENAL CODE SECTION 666 INSTEAD OF PENAL CODE SECTION 667

Defendant claims that he must be punished under Penal Code section 666 instead of Penal Code section 667, subdivisions (b) to (i). He presents four separate arguments in support of this assertion. We reject them.

1. VIOLATION OF SECTION 666 IS A FELONY

Defendant claims that a person who violates Penal Code section 666 does not "commit a felony" but only commits "a misdemeanor with enhanced punishment" and therefore does not come within the meaning of Penal Code section 667, subdivisions (b) to (i). We disagree.

"A felony is a crime which is punishable with death or by imprisonment in the state prison." (Pen.Code, § 17, subd. (a), emphasis added.) "When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor

for all purposes" only when a punishment other than state prison is imposed or the offense is designated or charged as a misdemeanor or determined or declared to be a misdemeanor. (Pen.Code, § 17, subd. (b).) Defendant relies heavily on the fact that Penal Code section 666 is a "sentence-enhancing statute" rather than a "substantive offense statute." (Coronado at p. 152, fn. 5, 48 Cal.Rptr.2d 77, 906 P.2d 1232.) We find this fact irrelevant as to this issue. Penal Code section 17 makes clear that it is the potential punishment for an offense which determines whether the offense is a felony or a misdemeanor. As Penal Code section 666 is the statute which specifies the punishment for defendant's offense, it is the statute to which we must look in order to determine whether defendant's crime is a felony or a misdemeanor. In this case, it is easy to see that defendant's offense is a felony under Penal Code section 17, subdivision (a) because [54 Cal.App.4th 712] Penal Code section 666 provides that defendant's offense is "punishable ... by imprisonment in the state prison" and none of the circumstances set forth in Penal Code section 17, subdivision (b) apply here. We reject defendant's claim that his offense was not a felony.

2. THE 'SPECIAL OVER GENERAL' RULE IS INAPPLICABLE

Defendant argues that Penal Code section 666 is a "special statute" which controls over Penal Code section 667, subdivisions (b) to (i), a "general statute." As the Attorney General points out, a similar argument was rejected by the California Supreme Court in People v. Coronado (1995) 12 Cal.4th 145, 48 Cal.Rptr.2d 77, 906 P.2d 1232. (Coronado at p. 153, 48 Cal.Rptr.2d 77, 906 P.2d 1232.) Coronado had received a state prison term for driving under the influence because he had three prior convictions for driving under the influence. The state prison term was authorized by Vehicle Code section 23175, which, like Penal Code section 666, is a sentence-enhancing statute and not a substantive offense statute. (Coronado at p. 152, fn. 5, 48 Cal.Rptr.2d 77, 906 P.2d 1232.) A one-year prison prior enhancement (Pen.Code, § 667.5, subd. (b)) was attached to Coronado's state prison term as a consequence of the fact that one of his three prior driving under the influence convictions had been a felony and had resulted in a state prison term. (Coronado at p. 149, 48 Cal.Rptr.2d 77, 906 P.2d 1232.) Coronado claimed on appeal that Penal Code section 667.5, subdivision (b) was inapplicable because Vehicle Code section 23175 was a "special statute" which controlled over the more "general statute" Penal Code section 667.5, subdivision (b). (Coronado at p. 153, 48 Cal.Rptr.2d 77, 906 P.2d 1232.) The California Supreme Court soundly rejected this...