People v. Vu
Decision Date | 04 June 2002 |
Docket Number | No. H022334.,H022334. |
Citation | 98 Cal.App.4th 1360,120 Cal.Rptr.2d 379 |
Court | California Court of Appeals |
Parties | The PEOPLE, Plaintiff and Respondent, v. Giam Thai VU, Defendant and Appellant. |
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Christina V. Kuo, Supervising Deputy Attorney General, William Kuimelis, Deputy Attorney General, Attorney for the Respondent: The People.
Alan Siraco, under appointment by the Court of Appeal for Appellant, Attorney for Appellant: Giam Thai Vu.
Giam Thai Vu was charged with two counts of unlawful penetration with a foreign object (Pen.Code, § 289, subd. (a)(1)); sexual battery (Pen.Code, § 243.4, subd. (a)); making a terrorist threat (Pen.Code, § 422); rape (Pen.Code, § 261, subd. (a)(2)); forcible oral copulation (Pen.Code, § 288, subd. (c)); and first degree burglary (Pen.Code, § 460, subd. (a)).1 Vu was acquitted of forcible oral copulation and first degree burglary but convicted of the remaining charges. He was sentenced to a total of 11 years in state prison.
On appeal, Vu argues (1) his testimony and cross-examination were improperly limited; (2) the prosecutor committed misconduct when she put a nun dressed in a nun's habit on the witness stand even though the nun had no personal knowledge of Jane Doe's character for truthfulness; (3) the trial court should have sua sponte instructed the jury that sexual battery was a lesser included offense of penetration with a foreign object; (4) the trial court improperly imposed a full consecutive term on count I; and (5) the trial court improperly imposed a full consecutive term for count IV.
We conclude that the trial court should have instructed the jury that sexual battery is a lesser included offense of penetration with a foreign object and that the failure to so instruct was prejudicial. Accordingly, we will reverse the judgment.
Jane Doe met defendant in 1995. In 1996, the couple became engaged. In 1996, Doe ended the engagement because she believed defendant had a wife and children living in Vietnam. Although Doe continued to see defendant as a friend, she no longer wanted to be romantically involved with him.
Doe lived with her sister, brother-in-law, and two nephews in an apartment in San Jose. In mid-1996, defendant found himself without a place to live. Doe agreed to let him stay in her apartment; he was to sleep on the couch and keep his personal belongings in her bedroom. In mid-1997, defendant left Doe's apartment. By early 1999, defendant moved back in but Doe had moved downstairs to a neighbor's apartment because defendant repeatedly came to her room when she was alone.
On June 30, 1999, while Doe was home alone, defendant came to her apartment, asking to borrow household items. When Doe refused, defendant became angry and followed Doe to her bedroom. Defendant pushed Doe against the closet, held her against the wall, touched Doe's "vagina" through her clothes, and then put his hands under her clothes and put his fingers inside her vagina. Defendant also touched her breasts and kissed her mouth, neck, and breasts. Doe yelled at defendant and tried to push him away but defendant pushed Doe onto the bed and held her down. Frightened, Doe eventually managed to push defendant away and run to the kitchen. After defendant left, Doe did not call the police because she was afraid defendant would kill her when he got out of jail. Doe knew that the attack occurred on June 30, 1999, because that was the day she returned from a religious retreat.
On July 3 or 4, 1999, Doe's brother-in-law invited defendant to a party held at Doe's brother-in-law's apartment. When defendant became intoxicated, his friends asked Doe to talk with defendant to keep him awake. Although Doe was afraid of defendant, she spoke with him because the friends were present. Defendant told Doe that he had bought a gun. He said he would use the gun to kill Doe and then kill himself. Doe believed that defendant would kill her. She did not call the police because she was afraid of defendant.
On a Friday sometime between the early July 1999 party and August 30, 1999, Doe saw defendant. Doe knew it was a Friday night because it was a night that she had a Bible study class. Defendant followed Doe into her apartment, asking to borrow a cooking pan. Defendant wanted to talk with Doe but she refused to talk with him. Defendant refused to leave when Doe asked him to go. As Doe was preparing for her Bible study class, defendant embraced her from behind, using both arms. He fondled and kissed Doe's breasts both over and under her clothes and kissed her on the mouth. Doe managed to push defendant away but he hit her on the face with his hand. Doe then hit defendant in the face and managed to push him away as he tried to strike her again. Doe told defendant to leave but he refused. The two argued and defendant told Doe that she was not supposed to yell at him. Doe began preparing for her Bible study class and defendant left. After defendant left, Doe locked the bathroom door and began taking a shower.2
While in the shower, Doe felt defendant embrace her from behind. Defendant was naked and penetrated Doe's vagina with his penis. Doe struggled and yelled but defendant had his arms around her and he pushed her down into the bathtub. Doe's head hit the bathtub as he pushed her down. Eventually Doe was able to push defendant away and his penis came out of her vagina. Defendant then put his fingers into her vagina and Doe testified that it was very painful. Yelling at defendant and calling him a monster, Doe pushed him away but defendant held her arms back and began kissing her on the breasts, mouth and vagina. As defendant attacked Doe, he told her that he wanted to get her pregnant so that she could not "escape from him." Defendant also threatened Doe, saying that if she told anyone what he had done to her he would simply say that she consented and that she would be the one to get into trouble.
A few weeks after defendant raped Doe in the shower, defendant pushed his way into Doe's apartment and began reprimanding her. Although Doe asked defendant to leave, he refused. Defendant embraced Doe. Doe yelled and tried to push defendant away but he held her so that she could not move. Defendant touched Doe's breasts and "vagina" through her clothes and pushed her to the floor. Once defendant had forced Doe down to the floor, he began pushing her clothes away and touching her breasts and vagina. Doe kicked defendant and pulled his hair but defendant told Doe he didn't care because he wanted to do "that" as a "kind of revenge" for not allowing him to come into the apartment. Defendant eventually left.
Sometime after the incident above, defendant again forced his way into Doe's apartment. Defendant pushed open a locked window and jumped through. Doe ran to her bedroom, locking the bedroom door. Defendant asked Doe to open the bedroom door and told her that he could open it himself. Doe heard defendant try to open the door. Defendant threatened to damage Doe's car if she did not open the door. Defendant then shoved a kitchen knife underneath the door where Doe could see it and told her that he would kill her and then himself if he got inside her bedroom. Defendant then told Doe that she would soon see his blood coming underneath the bedroom door. Doe stayed in her bedroom until she heard her brother-in-law's voice outside. By then, defendant was gone.
On August 30, 1999, Doe finally overcame her fear and called the police. San Jose Police Officer Eugene Gaines responded to Doe's apartment. Doe was trembling and crying when she spoke with Gaines. As they spoke, Doe saw defendant and became hysterical. Defendant admitted to Officer Gaines that he was upset because Doe had broken off their relationship. Defendant also admitted telling Doe that he would kill himself.
Defendant testified on direct examination that Doe broke off the engagement because she decided to become a nun. Defendant denied seeing Doe on June 30, 1999. Defendant stated that he was at the party held on July 3 or 4, 1999, but did not remember threatening to kill himself or anyone else. Defendant denied attacking Doe in the shower or threatening her with a knife.
Defendant offered three character witnesses. Phuang Anh Tran, whose brother was one of defendant's friends, testified that Doe developed a reputation for untruthfulness after defendant was arrested. Van Le testified that people in the neighborhood were upset when defendant was arrested and decided that Doe was not truthful. Le had known defendant for about one year at the time of trial. Tarn Nguyen, the daughter of Van Le, testified that people in the neighborhood began talking after defendant's arrest and decided that Doe was untruthful.
On rebuttal, three witnesses testified that Doe had a reputation for truthfulness among her colleagues at the Vietnamese catechism classes she taught on Saturdays.
Defendant was charged with two counts of unlawful penetration with a foreign object, sexual battery, making a terrorist threat, forcible oral copulation, rape and first-degree burglary.
The jury acquitted defendant of forcible oral copulation and burglary. The jury convicted defendant of two counts of unlawful penetration with a foreign object (§ 289, subd. (a)(1)); sexual battery (§ 243.4, subd. (a)); making a terrorist threat (§ 422); and rape (§ 261, subd. (a)(2)).
For the offenses of rape and unlawful penetration with a foreign object, defendant was sentenced pursuant to section 667.6. The trial court used the sexual battery offense for the principal...
To continue reading
Request your trial