P. v. Nguyen
Filed 6/14/13 P. v. Nguyen CA4/3
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opinion has not been certified for publication or ordered published for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
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
LAP PHUONG NGUYEN,
Defendant and Appellant.
G046381
(Super. Ct. No. 11WF1672)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, Richard M. King, Judge. Affirmed in part, reversed in part, and
remanded with directions.
Robert L.S. Angres,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Lilia E. Garcia and Felicity Senoski,
Deputy Attorneys General, for Plaintiff and Respondent.
*
* *
Introduction
Defendant
Lap Phuong Nguyen was convicted of receiving
stolen property, unlawful acquisition of access card information, and vehicle
burglary. On appeal, defendant
challenges the sufficiency of the evidence supporting one of his convictions,
and raises several sentencing-related issues.
We
conclude there was sufficient evidence of vehicle
burglary. Although mere possession
of stolen property is not enough to support a conviction for burglary,
defendant’s presence at the scene of the crime was sufficient corroborating
evidence. We therefore affirm
defendant’s conviction for vehicle burglary.
We
agree that defendant is entitled to additional presentence custody credits, but
because defendant’s crimes were committed before October 1, 2011, he is not entitled to accrue good
conduct credits at the current rate specified in Penal Code section 4019,
subdivision (f).
Defendant
was ordered to pay restitution to two victims.
We agree with defendant and the Attorney General that the award to one
of those victims (Cindy Dang) must be stricken because her losses did not occur
as a result of defendant’s criminal conduct; defendant was convicted of
unlawful acquisition of Dang’s access card information, but was acquitted of
burglarizing the vehicle from which Dang’s property was taken. We remand the matter to the trial court to
conduct a restitution hearing as to the other victim (Giangtuyet Vu), to
determine whether defendant’s criminal conduct was a substantial factor in
causing her loss.
Finally,
we reverse the restitution and parole revocation fines imposed by the trial
court and direct the court to impose fines in the amount provided by statute at
the time defendant’s crimes were committed.
Statement of Facts and Procedural History
In
November 2009, Huong Thi Nguyen saw defendant as she was pulling into the
parking lot of a Westminster, California,
cemetery; Nguyen recognized defendant because he had previously patronized a
coffee shop she owned. Defendant
acknowledged Nguyen by smiling at her.
Nguyen left her purse in her locked car, and made a visit to a gravesite
for about 30 minutes. When Nguyen
returned to her car, she noticed broken glass inside the car, and that her
purse was missing. The following items
were in Nguyen’s purse when it was stolen:
a checkbook, credit cards, about $400 in cash, and her driver’s license.
Later
that same month, Giangtuyet Vu left her purse in her locked car and entered a store. When she returned to the car, her purse was
gone. The car did not appear to have
been broken into. Vu’s purse contained
eight money orders, each in the amount of $1,000; credit cards; a Costco
membership card; a debit card; Vu’s driver’s license; her social security card;
and $11,500 in cash.
In
December 2009, Cindy Dang was at a martial arts studio with her sister; Dang
parked her sister’s van in an alley behind the studio. Dang’s sister later discovered a window of
the van had been broken. Although Dang
did not testify at trial, she told the probation officer her purse had been
stolen; the purse contained $1,800 in cash, two gift cards valued at $100 each,
credit cards, and her driver’s license.
Defendant’s
room was searched in January 2010. Among
other items, the police found a driver’s license and an access card belonging
to Nguyen; Vu’s driver’s license, credit cards, and access cards; and a
driver’s license and AAA card belonging to Dang.
Defendant
was charged with receiving stolen property (count 1); unlawful acquisition of
access card information (counts 2, 3 (Vu), 4 (Nguyen), and 5 (Dang)); second
degree vehicle burglary (counts 6 (Nguyen’s car) and 7 (Dang’s sister’s van));
and second degree commercial burglary (count 8). The information alleged defendant had one
prior strike conviction, and had served two prior prison terms. During trial, the prosecutor moved to dismiss
count 8, and the trial court granted the motion. The court granted a motion for a judgment of
acquittal as to counts 2 and 7. A jury
found defendant guilty of all remaining counts.
In a bifurcated proceeding, defendant admitted the prior strike
conviction and prison term allegations were true.
The
trial court sentenced defendant to a total of 12 years in prison: the upper term of three years on count 3,
plus consecutive eight-month terms on counts 1, 4, and 5, doubled and enhanced
due to the findings on the priors.
Execution of the sentence on count 6 was stayed. The court awarded defendant 212 days of
presentence custody credit. The court
also imposed a $240 restitution fine and a $240 parole revocation fine. Defendant timely appealed.
Discussion
I.
of the Evidence
Defendant
contends the evidence is insufficient to support his conviction on
count 6, the vehicle burglary of Nguyen’s car at the cemetery.
Vehicle
burglary requires proof that a defendant entered a locked vehicle with the
intent to commit theft or any felony.
(Pen. Code, § 459; CALCRIM No. 1700.) Possession of recently stolen property, alone,
is not sufficient to support a conviction for burglary; however, it is so
incriminating that only slight additional corroborating evidence is
needed. (People v. McFarland (1962) 58 Cal.2d 748, 754-755; CALCRIM No.
376.) Defendant was unquestionably in
possession of property stolen from Nguyen’s car, specifically her driver’s
license and access card. The
corroborating evidence was Nguyen’s testimony that she saw defendant as she
entered the parking lot of the cemetery, where the crime occurred. The evidence presented to the jury did not
have the potential taint of mistaken eyewitness testimony: Nguyen actually knew defendant, who had been
a customer at a coffee shop Nguyen previously owned, and defendant acknowledged
Nguyen by smiling at her that day. Based
on that corroborating evidence, the jury could properly infer, based on
defendant’s possession of Nguyen’s stolen property, that defendant entered
Nguyen’s locked car with the intent to commit theft. Therefore, the conviction on count 6 is
supported by substantial evidence.
II.
Custody Credits
Defendant
spent 177 days in custody between July
21, 2011 (the date of his arrest) and January 13, 2012 (the date of his sentencing). The trial court awarded defendant 177 days of
actual custody credit, and 35 days of good conduct credit, for a total of 212
days.
defendant committed the crimes, he was entitled to two days of good conduct
credit for every four days of actual custody credit. (Pen. Code, former § 4019,
subd. (f); compare id.,
§ 4019, subds. (f), (h).)
Therefore, as the Attorney General concedes, the trial court should have
awarded defendant 88 days of good conduct credit, for a total of 265 days of
presentence custody credit. We will
direct the trial court to correct its minute order and the abstract of judgment
to properly reflect defendant’s presentence
Defendant
argues he was entitled to receive two days of good conduct credit for every two
days of actual custody, during the period after October 1, 2011. The 2011 amendment to the rate at which good
conduct credits accrue applies only to defendants who committed their crimes
after October 1, 2011. Because defendant
committed his crimes before October 1, 2011, the previous, lower rate of good
conduct credit accrual applies to his entire presentence custody period. (People
v. Rajanayagam (2012) 211 Cal.App.4th 42, 51-52.)
III.
Awards
The
trial court ordered defendant to pay restitution as follows: (1) to Vu, in the amount of $19,500, for the
loss of cash and money orders; and (2) to Dang, in the amount of $2,495, for
the loss of a purse, a wristlet, cash, a Costco gift card, and a Ross gift
card, and for damages due to a broken window in Dang’s sister’s van. Defendant’s trial counsel stipulated to the
amount of restitution to be ordered. On
appeal, defendant argues his trial counsel provided ineffective assistance of
counsel. The Attorney General does not
argue that the issue of restitution has been forfeited; therefore, we address
the issue on its merits.
“It is the intent of the Legislature that a
victim of crime who incurs an economic loss as a result of the commission of a
crime shall receive restitution directly from
a defendant convicted of that crime.â€
(Pen. Code, § 1202.4, subd. (a)(1), italics added; see also
Cal.App.4th 1227, 1249 [“section 1202.4 limits restitution to losses
caused by the criminal conduct for which the defendant was convictedâ€].) “[I]n every case in which a victim has
suffered economic loss as a result of the
defendant’s conduct, the court shall require that the defendant make
restitution to the victim or victims in an amount established by court order,
based on the amount of loss claimed by the victim or victims or any other
showing to the court.†(Pen. Code,
§ 1202.4, subd. (f), italics added.)
As the Attorney General concedes, the
restitution award to Dang was improper.
Dang’s losses were all related to a vehicle burglary on December 23,
2009. However, the trial court granted a
motion to acquit defendant of the charge of burglarizing Dang’s sister’s
van. (Pen. Code, § 1118.1.) The order for restitution to Dang must
therefore be reversed. (
Cal.App.4th 164, 180 [“a restitution order is not authorized where the
defendant’s only relationship to the victim’s loss is by way of a crime of
which the defendant was acquittedâ€].)
With respect to Vu, all of her losses stemmed
from the burglary of her car. Defendant
was never charged with or convicted of that car burglary, although he was
convicted of possession of Vu’s access card.
The Attorney General contends this is sufficient to establish
defendant’s criminal conduct was a substantial factor in causing Vu’s
loss.
In support of her argument, the Attorney
General cites People v. Holmberg
(2011) 195 Cal.App.4th 1310. In
that case, computer equipment and credit cards were stolen from businesses in
San Jose, California. (
observed on surveillance videos, using a stolen credit card the next day. (Id.
at p. 1314.) Some of the stolen computer
equipment was found when a search warrant was executed at the defendant’s
home. (Ibid.) The defendant was
charged with, and pleaded no contest to, concealing stolen property and using
an altered, stolen, or counterfeit access card.
(Id. at p. 1315.) He was ordered to pay restitution of $18,072,
including the replacement cost of stolen computers and $10,000 for the loss of
business and productivity after the burglary.
(Id. at pp. 1316, 1318.) The defendant argued he could not be ordered
to pay restitution because he did not commit the burglary, and the restitution
award was not causally related to his crime of possessing stolen property. (Id.
at p. 1318.) The appellate court
concluded that while the victim companies’ losses were the direct result of the
burglaries, the defendant’s possession of the stolen property was also a
substantial factor in causing the victim’s loss. (Id.
at pp. 1322-1324.)
The court in People v. Holmberg, supra,
195 Cal.App.4th at page 1322, explained:
“Although defendant denies burglarizing the victims’ premises, the
evidence here supports the conclusion that defendant’s conduct was a concurrent
cause of the victims’ losses and a substantial factor in depriving them of the
use of their property. There was
evidence that defendant received the stolen property on the day it was
stolen. Henderson admitted that she and
defendant used a stolen credit card at Taco Bell and 7‑Eleven on the day
of the Stonecrest burglary; both defendant and Henderson admitted using the
stolen credit card at Target the day after.
Henderson told police that several computers and monitors showed up at
their home at that time and that defendant ‘fixed’ the computers and sold them
on craigslist. By the time the police
executed a search warrant almost two months after the burglaries, the monitors
were gone and the computers had been altered to the point that only the hard
drives were recovered. Defendant
admitted he knew the property was stolen when he possessed it. He argues that since the stolen property did
not have any distinctive markings, he was
prevented . . . from returning it to its rightful
owner. However, nothing prevented
defendant from turning over the known stolen items to the police. For these reasons, we conclude that
defendant’s concealing of the stolen property was a concurrent cause in
depriving the victims of the use of their property. It is significant that defendant obtained the
property the day it was stolen. Had he
contacted law enforcement about the items when he received them, Stonecrest
would not have had to replace them or incur a one‑week loss of business
and productivity. Defendant’s conduct
played far more than a negligible or theoretical part in bringing about the
victims’ injuries and was a substantial factor in causing the harm they
suffered.â€
We
agree with the Attorney General that the issue of restitution to Vu
“is not . . . clear cut.†The Attorney General contends there is some
evidence linking defendant’s conviction for unlawful acquisition of Vu’s access
card information with Vu’s loss of $11,500 in cash and $8,000 in money
orders. As to the money orders, the
Attorney General relies on the following from the probation report: “On November 12, 2009, victim Giang V.
reported her purse, which contained numerous access cards, $11,500 in cash,
eight blank money orders for $1,000 each, a driver’s license, and a social
security card, was taken from her vehicle.
On November 24, 2009, the stolen money orders were deposited into an
ATM. Giang’s driver’s license and access
cards were later recovered from the defendant’s residence.†Other than defendant’s possession of some of
the property that was located in Vu’s stolen purse, there is no apparent
connection in our record between the crime of which defendant was
convicted—unlawful acquisition of access card information—and the losses Vu
claims to have suffered. That the stolen
money orders were deposited into an unidentified account by means of an ATM
does not connect defendant to them; the probation report does not state
defendant made the deposit, or the money orders were deposited into his
account.
All
matters of restitution to Vu should be resolved by conducting a restitution
hearing pursuant to Penal Code section 1202.4.
The trial court should consider all issues pertaining to the entire
amount of loss claimed by Vu, not solely the $11,500 in cash.
IV.
Fines
The
trial court imposed a $240 restitution fine and a $240 parole revocation fine
at sentencing. The court initially
imposed fines of $200 each, but then increased the fines, based on the mistaken
assumption that recent changes in the statutes authorizing the fines applied to
defendant. Effective January 1, 2012,
Penal Code former section 1202.4, subdivision (b)(1) was amended to
increase the minimum restitution fine from $200 to $240. (Stats. 2011, ch. 358, § 1.)
before January 1, 2012, it would violate ex
post facto laws to impose the higher fines on defendant. (People
v. Callejas (2000) 85 Cal.App.4th 667, 678; People v. Downing (1985) 174 Cal.App.3d 667, 672.) We therefore direct the trial court to modify
its minute order and the abstract of judgment to reflect that the minimum
restitution fine and parole revocation fine are $200 each.
Disposition
We
direct the trial court to amend the minute
order and the abstract of judgment to (1) award defendant a total of 265
days of presentence custody credit, and (2) set the minimum restitution fine
and the minimum parole revocation fine at $200 each. The trial court shall forward a certified
copy of the amended abstract of judgment to the
abstract of judgment in favor of Cindy Dang in the amount of $2,495. We further reverse the order for restitution
and abstract of judgment in favor of Giangtuyet Vu in the amount of $19,500,
and direct the trial court to conduct a restitution hearing pursuant to Penal
Code section 1202.4, as to all of Vu’s claims for restitution. In all other respects, the judgment is
affirmed.
FYBEL,
ACTING P. J.
WE CONCUR:
IKOLA, J.
THOMPSON, J.
by defendant’s appeal, we will only discuss the facts of the relevant
crimes.
with the prosecutor that defendant was entitled to 212 days of presentence
custody credit, defendant did not forfeit this issue on appeal. “A sentence that fails to award legally mandated
custody credit is unauthorized and may be corrected whenever discovered.†(People
v. Taylor (2004) 119 Cal.App.4th 628, 647.)
