P. v.
Nguyen
Filed 5/20/13 P. v. Nguyen CA3
NOT TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
THE
PEOPLE,
Plaintiff and Respondent,
v.
HOANG
CONG NGUYEN,
Defendant and
Appellant.
C068944
(Super. Ct. No. CRF102350)
A jury found defendant Hoang Cong Nguyen
guilty of multiple violent crimes, including
burglary (Pen. Code,
name="_ftnref1" title="">[1]
§ 220, subd. (b)) and attempted rape (§§ 21a, 664, subd. (a), 261,
subd. (a)(2)). The jury also found true
multiple sentencing enhancement allegations, including enhancements for great
bodily injury. The trial court sentenced
defendant to an aggregate term of 19 years to life in state prison.
On appeal, defendant contends the
trial court erroneously instructed the jury regarding the infliction of great
bodily injury during a sexual assault. He further contends insufficient evidence
supported the great bodily injury allegation as to count 8, a claim with
which we agree. He adds a claim of error
in the oral pronouncement of sentence and the resulting abstract of judgment,
which the People concede and with which we agree.
Our review of the record reveals an
additional error that resulted in an unauthorized sentence--the trial court
failed to order defendant to register as a sex offender under section 290.
We will order the judgment modified
and the abstract amended accordingly. As
modified, we shall affirm the judgment.
Offense Conduct
On May
6, 2010,
defendant was in the apartment of Diem Trinh Dang, his ex-girlfriend, and her
sister, Dao Nguyen Dang.
name="_ftnref2" title="">[2] He was alone with Dao. While sitting at her desk, Dao felt a
“shocking sensation†under her right arm.
Defendant grabbed Dao from behind and, while Dao was still seated,
repeatedly shocked Dao with a stun gun as she struggled to get away from
him. Dao was able to stand, but was not
able to get away from defendant as he continued to shock her.
As Dao and defendant struggled, Dao
yelled for help several times and asked defendant to stop. He did not stop, and as they continued to struggle,
he tried to undress Dao.
Dao was able to reach a knife and
stab defendant in the leg. Then, weak
from the repeated shocks, Dao fell to the ground and lay motionless, hoping
defendant would think she was unconscious.
When Dao opened her eyes, she saw defendant’s pants and underwear were
around his ankles. She also saw
defendant’s penis. As she lay on the
ground, defendant began shocking Dao with the stun gun again. Dao moved toward the front door; she opened
the door and went down the steps to the outside of the apartment building. A passerby helped Dao walk to the apartment
manager’s office and law enforcement arrested defendant shortly thereafter.
Dao was psychologically traumatized
by the assault. She sustained multiple
welts on her torso, neck, back, and flanks and a cut on her breast. Defendant admitted he was infatuated with
Dao, and had dreams about her being undressed.
He admitted to searching for stun guns online and buying the one he used
to assault Dao on his way to Dao’s apartment.
He also admitted using the stun gun on Dao.
Charges
The People charged defendant with
assault with intent to commit rape during a burglary (§ 220, subd. (b);
count 1), assault with intent to commit rape (§ 220, subd. (a); count 2),
first degree burglary (§ 459; count 3), attempted rape (§§ 664, subd.
(a), 261, subd. (a)(2); count 4), false imprisonment with force or violence
(§§ 236, 237, subd. (a); count 5), and three counts of assault with a
deadly weapon (§ 245, subd. (a)(1); counts 6-8).
Counts 1 through 5 also alleged that
defendant personally used a dangerous and deadly weapon during the commission
of those crimes. (§ 12022, subd.
(b)(1).) Counts 1, 2, and 4 alleged that
defendant inflicted great bodily injury on his victim during the commission of
a sex offense. (§ 12022.8.) Counts 5 through 8 also alleged that
defendant personally inflicted great bodily injury on someone other than an
accomplice. (§ 12022.7, subd. (a).)
Verdicts
The jury found defendant guilty on
counts 1, 3, 4, 5, 6, and 8, finding him not guilty on count 7. Count 2 was later stricken. The jury found true all of the enhancement
allegations on the counts of conviction.
The trial court sentenced defendant to an aggregate term of 19 years to
life in state prison.
I
Defendant first contends the trial
court erred in providing the jury with a pinpoint instruction requested by the
People, arguing that the instruction was misleading and denied defendant
A. The
Instruction
The trial court instructed the jury
in pertinent part as follows: “Great
bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or
moderate harm.
“If a victim of unlawful sexual
conduct experiences physical injury and accompanying pain beyond that
ordinarily experienced by victims of like crimes, such additional injury may be
used to determine whether the victim suffered great bodily injury.â€
B. Sexual
Offense
Defendant first argues the last
paragraph of this instruction “was erroneous because here there was no sexual
offense committed, . . . .â€
However, defendant was convicted of attempted rape. Attempted rape is a
sexual offense. (See
1, 53 [a prior attempted rape is admissible under Evidence Code section 1108 as
evidence of a prior sexual offense
demonstrating defendant’s propensity to commit sexual offenses].) Indeed, as we briefly discuss
attempted rape, defendant faces mandatory lifetime registration as a sex
offender. (§ 290, subds. (b)-(c);
199 Cal.App.4th 1403, 1426 [every person convicted of attempted rape is
subject to mandatory lifetime registration as a sex offender].) Thus defendant’s argument fails.
C. Additional Injury
Defendant also argues that the
instruction at issue “suggested that virtually any additional injury would be sufficient to prove GBI.†Specifically, he argues the instruction
“strongly implies that so long as there is injury that one ordinarily wouldn’t
sustain in a forcible rape, then there is every likelihood that this additional
injury constitutes GBI.†We disagree.
The trial court instructed the jury
that great bodily injury “means significant or substantial physical
injury. It is an injury that is greater
than minor or moderate harm.†We assume
“the jurors are intelligent persons and capable of understanding and
correlating all jury instructions which are given.†(People
v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) Thus, we assume the jury heeded the
instruction informing it that not just any
additional injury would constitute great bodily injury. Contrary to defendant’s claim, the People’s
closing argument did not suggest otherwise.
D. Fear Alone
Defendant also contends the People’s
closing argument relied on the pinpoint instruction to argue the jury could
find true the enhancement allegation based on the victim’s fear alone,
compounding the error.
The portion of the People’s closing
argument relative to this claim is as follows:
“When you have a violent sexual assault, and there’s more injury and
pain caused to you other than just that sexual assault you can consider
that. And that’s what we have here. We don’t just have someone who, because of
the fear instilled in her, forced her to have sex, we have her being --
electrical current running through her body the entire time in order to get her
to comply.â€
Defendant claims this argument
implied that “simply the victim’s fear that was the result of the violent
sexual assault would be sufficient to constitute GBI.†To the contrary, we interpret the argument as
acknowledging that although a defendant may commit sexual assault solely by use
of fear or duress, and cause no visible, physical injury, where, as here, a
defendant does employ physical
violence to accomplish the assault,
the jury may consider any resulting injuries when determining great bodily
injury. The People’s argument did not
improperly suggest that fear alone constituted great bodily injury.
In sum, we find no error and no
deprivation of defendant’s right to due process.
II
Defendant further contends there is
conviction for inflicting great bodily injury on his victim in count 8 (the
last of three counts charging assault with a deadly weapon). Defendant “does not contest that there was
sufficient evidence for the jury to have concluded that [the victim] suffered
great bodily injury during the course of the attack.†Defendant’s only claim is that “the evidence
was insufficient for the jury to have concluded that there were two separate
instances of [great bodily injury].†On
this point, we agree.
A. Standard
of Review
In reviewing the sufficiency of the
evidence supporting a conviction, we view the entire record in the light most
favorable to the People to determine if it contains evidence from which a
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. (People v. Valdez (2004) 32 Cal.4th 73, 104.) “‘The test on appeal is whether substantial
evidence supports the conclusion of the trier of fact, not whether the evidence
proves guilt beyond a reasonable doubt.’â€
(People v. Johnson (1980)
26 Cal.3d 557, 576, quoting People
v. Reilly (1970) 3 Cal.3d 421, 425.)
B. Analysis
The People charged and argued at
trial that defendant committed three separate instances of assaultive conduct
with the stun gun, counts 6, 7, and 8.
The jury found him guilty of two instances--counts 6 and 8--as well as
the two accompanying allegations of great bodily injury. At sentencing, the trial court found the
assault charged in count 8 to be a “separate assault based on the facts at
trial. There was not only the
opportunity to reflect, but there was a change in position, a change of the
nature of things. There was a break in
time while things were happening.â€
Defendant does not challenge the
finding that he committed a second, renewed assault. He argues, however, the great bodily injury
enhancement appended to count 8 "should have been stayed since there was
no evidence that the injuries sustained pursuant to that stun gun use were in
any way separate from the injuries from the earlier incidents." The People agree that the enhancement as to
count 8 was “based on [defendant’s] renewed attack on Dao, after she fell to
the ground and pretended to pass out.â€
They argue that because defendant “stunned [Dao] multiple times†in his
renewed attack, the renewed attack resulted in great bodily injury.
To support a finding that the
allegations of great bodily injury were true, the People were required to prove
beyond a reasonable doubt that each assault
separately resulted in great bodily
injury--“a significant or substantial physical injury†(§ 12022.7, subd.
(f))--to Dao, not merely that each assault occurred
separately. The People failed to do so. Although the People argue that they were “not
required to connect each [injury] to a specific count; it is enough that the
injuries were separated temporally,†here there is no evidence that the injuries
were separated temporally, only that the assaults were separated temporally.
During the renewed assault, Dao was
able to walk to the front door, open the door, walk down the stairs and find
help. It appears undisputed that Dao was
in pain from the use of the stun gun on her body throughout the renewed assault;
we assume that she was, indeed, in substantial pain. However, the People presented no evidence
that any of her injuries, as opposed
to her pain, caused by the use of the stun gun were the result of the
counts of assault in argument, they did not attempt to do so for the great
bodily injury enhancements. Nor was the
jury asked to identify the injury specific to each count of assault that
constituted great bodily injury.
Although Dao testified that the
shocks she received during the renewed assault were painful, pain alone does
not rise to the level of a significant or substantial physical injury, which is required to find great bodily
injury. (See § 12022.7, subd. (f).) The People do not cite any authority to
support their general claim that being stunned by a stun gun, without more,
necessarily results in great bodily injury.
The law is to the contrary. (See
1327, 1333 [without infliction of injury by stun gun, expert testimony was
required to show it was capable of inflicting great bodily injury in
prosecution for elder abuse].)
Accordingly, we find there is
insufficient evidence to support the great bodily injury enhancement appended
to count 8. We shall strike the
enhancement.
III
A. Enhancement
Allegations
Defendant contends, and the People
agree, the trial court incorrectly imposed sentence on the two separate
enhancement allegations charged with count 1.
Specifically, defendant should have received an additional
great bodily injury on his victim during the commission of his crime
(§ 12022.8), and an additional one-year
term for using a deadly weapon (§ 12022, subd. (b)(1)). The trial court instead imposed a sentence of
one year for great bodily injury and five years for the deadly weapon,
essentially “crossing†the sentences.
This error occurred during oral pronouncement of sentence and is also
reflected in the abstract of judgment.
We shall order the judgment modified and the abstract amended
accordingly.
B. Section
290 Registration Requirement
In relevant part, section 290,
subdivision (b) provides that “every person described in subdivision (c), for
the rest of his or her life . . . shall be required to register†with
the appropriate law enforcement authorities.
Under section 290, subdivision (c), any person who has been convicted of
attempted rape is subject to the registration requirement. Defendant was convicted of attempted
rape. Thus, the trial court was required
to order defendant to register as a sex offender. The court failed to do so.
The registration requirement is
mandatory. Therefore, the trial court’s
omission constituted an unauthorized sentence that we must correct even though
it was not raised by the parties either at trial or on appeal. (See People
v. Talibdeen (2002) 27 Cal.4th 1151, 1157; People v. Smith (2001) 24 Cal.4th 849, 852, 854 (
Since the erroneous omission of the sex offender registration
requirement “presents a pure question of law with only one answer†(
modified without requesting supplemental briefing.
The sentencing enhancement for great
bodily injury appended to count 8 is reversed and stricken.
The judgment is ordered modified to
reflect correct terms of years as to the two separate enhancement allegations
charged with count 1 and to add a section 290 registration requirement in
accordance with this opinion. As
modified, the judgment is affirmed.
The
trial court is directed to prepare an amended abstract of judgment and to send
certified copies to the Department of Corrections and Rehabilitation and to
defendant directly. Defendant’s counsel
is directed to forward a copy of this opinion to defendant.
DUARTE , J.
We concur:
BLEASE , Acting P. J.
MAURO , J.
name="_ftn1" title="">[1] Further undesignated statutory references are
to the Penal Code.
name="_ftn2" title="">[2] Because the Dang sisters share the same
surname, we refer to them by their respective first names. Because the People reveal the victim’s full
name in their briefing, so do we.
