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PEOPLE v. NGUYEN

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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Thuan Van NGUYEN et al., Defendants and Appellants.

No. G020280.

Decided: November 19, 1998

Corinne S. Shulman, Hydesville, Leslie C. Greenbaum, Anne V. Moore, Nevada City, John L. Dodd, Tustin, and Patricia Ihara, Newport Beach, under appointment by the Court of Appeal, for Defendants and Appellants. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Janelle M. Boustany and Matthew C. Mulford, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

Thuan Van Nguyen (Thuan), Thanh Van Le (Le), Anphong Duc Nguyen (Anphong) and Sokha Kong (Kong) appeal from the judgments sending them to prison for nine counts of armed robbery and a separate count of conspiracy to commit another robbery as well as gun use enhancements or vicarious arming enhancements.1  They broke into a business, robbing eight employees and a friend of theirs, taking not only personal effects, but also the expensive computer chips and equipment belonging to the business, resulting in a loss totaling $400,000.   Not satisfied, they returned to the scene of the crime about two months later, but were recognized and caught after trying to flee.

All four defendants join in the arguments raised by the other three, with the single exception of Kong's sentencing argument which is made for himself alone.   Le contends that one victim's identification of him was tainted and thereby improperly admitted.   He also argues that the evidence was insufficient to support any of the counts, that his trial attorney was incompetent for failing to renew a motion to strike all identifications of him after the initial denial of that motion, and that a tape recording of a conversation between two of his codefendants was erroneously admitted in their joint trial.   The remaining three defendants join in those arguments and raise a myriad of other arguments as well.   They contend that one count of robbery must be dismissed as the evidence was insufficient to establish that the named victim lost any property.   They also attack the standard reasonable doubt instruction, arguing that a pinpoint instruction drafted by Thuan's trial counsel was erroneously refused, and that the prosecutor committed prejudicial misconduct when he argued the definition that was actually given.   They also contend the trial court erred in its inquiry regarding an allegedly sleeping juror.   Finally, Kong repeats his demand for probation, contending his “youth” and lack of a criminal record require it.   We affirm.

I

FACTS

A group of employees of G & G Assemblers, a computer assembly business in Huntington Beach, were celebrating a birthday late one afternoon in February 1995.   Suddenly, two young Asian men walked into the lunchroom, one with a handgun and one with a two-foot-long assault-type firearm.2  They pointed their guns at the partygoers, and ordered them all to lie face down on the floor.   The man celebrating his birthday, Eulelio Briones, identified the first man as Le, although his coworkers identified Thuan as the first gunman and Le as the second one.   Two more armed men entered the room and were identified as Anphong and Kong. The latter two men pressed their guns against the heads of the victims and ordered them not to look at them under the threat of being shot.   The victims' hands were then tied behind their backs with plastic strips and ties.

The employees in the lunchroom were Briones, Martin Rodriguez, Karim Bundali, Grace Goncalves, Victor Hernandez, Felix Andrade, Isabel Garcia, Patricia Marta Flores and her husband, Jose Jiminez, who happened to be visiting his wife.   The robbers emptied the victims' pockets of wallets and identification, with at least one of them stating that they had to keep all the identification because otherwise the victims might talk to the police.   The robbers also took money from those wallets, at least those belonging to Rodriguez, Bundali and Briones.   They then turned their attention to the business's merchandise which included computer parts and equipment, boxing up as much as they could before fleeing.   The records indicated the business lost $400,000.

About two-and-one-half months later, Fazal Farooqui, an owner of G & G Assemblers, arrived at work and noticed a car with four young Asian men inside.   Aware and still upset over the February robbery, Farooqui watched the car from his office window.   After about 30 minutes, the car moved from one spot in the parking lot to another.   Another 20 minutes passed before the car slowly passed the front of the business and left the parking lot.   In the interim, Farooqui obtained the car's license plate number, and Bundali wrote it down for him.   About five minutes after its departure, the car returned, slowly rode past the front of the building and again left.

Ten minutes after its last departure, Thuan and Le walked up to the front of the business but found the front door locked.   Both of them attempted to open it.   Both of them were recognized as two of the February robbers by the employees inside the business.   Farooqui then telephoned the police, reporting the car's license number.

Matthew Fourmont, an off-duty reserve police officer, heard the report and proceeded towards the location of G & G Assemblers.   As he drove, he saw a car which matched the description of the suspects' vehicle.   Fourmont followed it to a park where all four occupants got out and walked to different points in the park.   Kong and Le were seated next to each other on a park bench when police arrived and arrested them;  Thuan and Anphong were found near the baseball field and basketball courts.

Le carried a receipt for the rental of a U-Haul truck which was parked nearby.   He explained that he had rented it to help a friend move that day.   He also told the officers that the car which Fourmont had followed was his.   He said he lived in Stockton and had driven the truck to help the friend.   He could not recall the friend's name or location, nor the name of another alleged friend who had driven his car from Stockton while he drove the truck.   He then corrected himself, explaining that he had driven his own car the previous weekend on a vacation to the area, but denied ever being in Huntington Beach or committing any robbery in Southern California.   Above all, he denied knowing the other three men, saying he just met them a few days earlier.

Fourmont identified Thuan and Anphong as the backseat passengers in the car he had followed, with Kong and Le occupying the front seats.   Thuan discarded a pair of rubber gloves near the baseball field which the officers retrieved.   Thuan initially told the police his name was Tony Tran but was unable to provide his home address, phone number or proof of identification.   The one thing he was sure about, though, was that he had never seen Kong or Le before.

Anphong was likewise positive that he did not know Kong, Le or Thuan.   He initially identified himself as Thuan Nguyen, but could not recall his address or phone number and failed to produce any identification.   He said he arrived at the park via a ride from a friend who was going to return for him in an hour.   He denied all knowledge about the truck, the robbery or the weapons.

Le gave the officers permission to search the car after denying he possessed any drugs or weapons.   The officers found plastic ties like the ones used to restrain the victims, and two loaded handguns-one having Le's fingerprints-in Le's car.   Le denied everything, claiming his “old lady” must have left the plastic ties in his car.

Kong said he lived in Stockton and was visiting Southern California as a tourist.   He stated that he had met Le recently in Stockton but denied all knowledge of the other two men.   He initially denied all knowledge of the U-Haul truck as well, but later corrected himself, conceding he had been present when it was rented.

Farooqui, Rodriguez and Bundali were driven to the park where all four suspects were gathered for the three men to view.   An officer admonished them in the standard way:  They should not be influenced by the fact that the people were in custody;  they should not talk with one another about the showup;  they should individually decide on whether to identify anyone, but that there was no obligation to identify anyone at all;  and that it was just as important to free innocent people from suspicion as it was to identify guilty ones.

Farooqui identified Thuan and Le as the two men who came and tried his business's door;  he identified Kong and Anphong as two of the four men riding in the car seen in his parking lot.   He was able to identify Le's car as the one he watched.

Both Rodriguez and Bundali feared reprisals if they identified anyone.   However, Rodriguez positively identified Thuan as one of the armed robbers, but was unsure about Le and Anphong.   Bundali positively identified all four of the suspects as the four armed robbers.3

The four men were arrested and placed in two separate police cars.   Thuan and Anphong were secretly recorded while they awaited the drive to the station.   Although the conversation was entirely in Vietnamese, a bilingual police officer translated the conversation into English, and this translation was read to the jury.   The conversation was primarily a declaration by each of the two men that he could have escaped if he kept running.   One of them said he “[s]hould have gone to the freeway to get away” and that he “[b]lew it.”   One of them expressed apprehension about the police interview because “they have machines.”   Both of them discussed possible sentence ranges of six months up to four years;  they also described weapons as “sticks,” “380,” “.38,” and said that one gun had been hidden.   One statement insinuated that four men were “just right, but we have five winners.”

The next day, park employees recovered a loaded, functional .38-caliber pistol and a cellular phone from a trash bin adjacent to where the four suspects were detained.   The last number dialed on the phone was to a number in central California with an area code of 209, which included Stockton.

Multiple lineups were conducted in the following two months after the arrests of the defendants.   Goncalves attended two of the lineups and was unable to identify anyone, although she testified that Le resembled the robber who carried the two-foot-long, assault-type weapon.   In trial, however, she positively identified Thuan and Le as the two holding the handgun and the assault weapon.   On cross-examination, she admitted having seen a set of photos with the defendants' pictures circled while waiting in an interview room.   The prosecutor instructed her not to examine the papers but she had looked at it anyway, and recognized two of the suspects as robbers in the February incident.   It was at this point that she recognized Le as the same man she had identified at the earlier lineup.   She was certain, though, that her in-court identification was independent of her observations of the photographs seen in the interview room.

At one lineup, Briones was uncertain but thought Le resembled one of the men.   However, he indicated his hairstyle had been changed.   He failed to identify anyone else.   Bundali positively identified Kong as one of the robbers at a later lineup, and identified all four of the suspects at trial with complete certainty.   Rodriguez positively identified all four men as the robbers, although his identification of Anphong was not as certain as the other three.

Rodriguez recognized Thuan as a man who posed as a flower salesman and attempted to walk around the business a few months before the February robbery.   Farooqui also recognized him from the same incident.   Thuan was uncooperative with their efforts to make him leave, and they noticed he failed to even attempt to sell flowers to any of the other businesses in the building once he left their door.

The defense presented expert testimony skeptical of the accuracy of eyewitness identification from a psychologist, Dr. Robert Shomer.   Kong presented an alibi through the testimony of several witnesses who saw him at a party the evening of the robbery.   The other three defendants testified they were together at a friend's home in Stockton on the day of the robbery and took a friend's wife to the hospital the next day.

II

DISCUSSIONSufficiency of Evidence for the Jiminez' Robbery

Le, Thuan, Anphong and Kong join in attacking the sufficiency of evidence to support the conviction of the robbery of Jiminez, contending that he could not be a robbery victim as he was not an employee of the business which lost the $400,000 of computer parts nor did he testify that personal property was taken from him without his permission, as he failed to testify at all.   The standard for review of the sufficiency of evidence is oft-quoted, but bears repeating here:  “[W]e must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence.   To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole.”   (People v. Carpenter (1997) 15 Cal.4th 312, 387, 63 Cal.Rptr.2d 1, 935 P.2d 708, internal quotation marks omitted;  italics added.)

The crime of robbery is the “felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”  (Pen.Code, § 211.)   The property involved must have “some value however slight.”  (CALJIC No. 9.40;  see People v. Coleman (1970) 8 Cal.App.3d 722, 728, 87 Cal.Rptr. 554.)   The defendants contend that Jiminez had no authority over the business's merchandise, and he personally never testified to losing any property.   Therefore, the conviction must fall.

 The Attorney General contends the evidence is sufficient to support the conviction because, irrespective of Jiminez' lack of proprietary interest over the merchandise, Jiminez had his pockets picked of whatever identification it held.   The circumstantial evidence to support this inference was the robbers' stated intent to take all identification, one of the robbers' demand to another robber to be sure and take all identification, and the testimony of three of the victims-the only ones ever asked-that the robbers accomplished that intention on them.   Although no one directly testified that Jiminez' pocket was picked of his identification, the inference was a reasonable one based on the circumstantial evidence that the robbers picked all the victims' pockets of identification.  “[B]oth direct and circumstantial evidence are acceptable as a means of proof.   Neither is entitled to any greater weight than the other.”  (CALJIC No. 2.00.)

Both parties focus unnecessarily on whether the court adequately instructed the jury as to the difference between actual and constructive possession of property.   If the jury reasonably inferred that the property which was the object of the robbery was Jiminez' personal identification from his pocket, the instruction was irrelevant-and its absence harmless-because it was unnecessary that Jiminez had a possessory interest over the merchandise taken from G & G Assemblers.

 Robbery is a crime against the person and a crime against property.  (2 Witkin & Epstein, Cal.Criminal Law (2d ed.   1988) Crimes Against Property, § 635, p. 715.)   Its thrust is the use of force or fear to deprive another permanently of his or her property.  (See Pen.Code, § 211.)   By focusing on the defendant's intention to use such force or fear to obtain or retain property belonging to another, no confusion occurs.   It is only when one's attention is misdirected to the technical status of the person from whom the property is taken does the present issue become pivotal.  (See Cook & Marcus, Criminal Law (3d ed. 1995) § 5.02, p. 331 [“The standard we adopt today continues the focus of a robbery on the conduct of the perpetrator rather than on the nature of the property stolen or the characteristics of the victim ․”  (Emphasis added.) ].)

That misdirection is being argued here.   The court granted the prosecution's request to give a special instruction which read that “[t]o be the victim of a robbery, [ ] a person need not own, possess, be in control of, or even have the right to possess or control the property sought by the perpetrator.  [¶] A victim may be an employee or visitor who becomes subject to the application of force or fear utilized to obtain the property of another person, owner of a business or employee.”   This language was derived from our opinion in People v. Mai (1994) 22 Cal.App.4th 117, 129, 27 Cal.Rptr.2d 141.   In Mai, two would-be robbers entered a fabric store, owned by Li Nguyen.   After drawing a gun on Nguyen, the two ordered her to the back of the store where Nguyen's son ran a small business dealing in gold.   Two of Nguyen's relatives happened to be visiting her son when this happened.   One of those relatives managed to wrestle the gun from one of the robbers and shot him, mortally wounding him.   The other relative was named in the pleading as an attempted robbery victim.   There was no evidence this other relative had any proprietary interest over anything in either the store or the gold business.   Yet, “once force and fear were applied to him in an attempt to deprive someone, or anyone, of property, Khoa Anh became the victim of an attempted robbery.  [Citation.]   A robbery consists of the application of force or fear to obtain the property of another.   The victim need not own, possess, or even have the right to possess the property sought by the perpetrator.”  (Ibid., original italics.)

However, a few months later a differing view was expressed in Sykes v. Superior Court (1994) 30 Cal.App.4th 479, 35 Cal.Rptr.2d 571 and People v. Galoia (1994) 31 Cal.App.4th 595, 37 Cal.Rptr.2d 117, in which “ Good Samaritans” were deemed not robbery victims even though they attempted to stop a thief from escaping with the fruits of the larceny.   In Sykes, a business's security guard saw a burglar leaving a neighbor business with a stolen saxophone.   He raised the “hue and cry” and gave pursuit, eventually tackling the burglar and wrestling him to the ground before retrieving the horn.   Focusing on the guard's employment with only the business across the street from the burgled store and his absence at the moment of the taking, the appellate court held-inaccurately in our opinion-that no robbery occurred.   Disregarding the repeated physical attacks on the guard and the various attempts to escape, the court focused on the “characteristics of the victim,” not the conduct of the perpetrator in using force to retain property belonging to another.

Similarly, in Galoia, a vending machine owner witnessed a theft from a convenience store because he was managing his own video game machines in the place at the time.   The dissent focused on the continuing nature of a robbery and the fact that force was used to retain the stolen goods, irrespective of who was attempting to retrieve them.  (See People v. Estes (1983) 147 Cal.App.3d 23, 194 Cal.Rptr. 909;  People v. Moore (1970) 4 Cal.App.3d 668, 84 Cal.Rptr. 771.)   We find that the reasoning of Mai and the dissent in Galoia are more persuasive than Galoia 's majority view.   In our opinion, the court's instruction was a proper statement of the law, focusing as it does on the perpetrator's conduct and intent, and not directing undue attention on the characteristics of the immediate victim.

III **

IV

The judgment is affirmed.

I concur with the majority's finding the evidence is sufficient to show appellants took Jose Jiminez's personal property by force or fear.   I write separately, however, because I disagree with the majority's conclusion Jiminez was also a robbery victim with respect to G & G Assemblers's (G & G) pilfered computer merchandise, merely because he was present at the scene.   As I now explain, the law requires a greater connection to the stolen property than mere presence.

Robbery is defined as “the felonious taking of personal property in the possession of another, from his [or her] person or immediate presence, and against his [or her] will, accomplished by means of force or fear.”  (Pen.Code, § 211, italics added;  see also CALJIC No. 9.40.)   The possession requirement is satisfied only if the victim has “ ‘an ownership interest in the property taken, or some representative capacity with respect to the owner of the property taken, or actual possession of the property taken․’ ”  (People v. Bekele (1995) 33 Cal.App.4th 1457, 1461, 39 Cal.Rptr.2d 797, citation, italics and internal quotation marks omitted;  see also People v. Miller (1977) 18 Cal.3d 873, 880-881, 135 Cal.Rptr. 654, 558 P.2d 552;  People v. Jones (1996) 42 Cal.App.4th 1047, 50 Cal.Rptr.2d 46.)

The rule is exemplified by a Washington State decision discussed in People v. Bekele, supra, 33 Cal.App.4th at pp. 1462-1463, 39 Cal.Rptr.2d 797.   In that case, the defendants beat two men into unconsciousness and drove off in one of their cars.   While the car owner was clearly a robbery victim, the court found his companion was not because he “ ‘did not own the stolen car.   He had no authority, either express or implied, from [the owner] to act concerning the car, nor was the car in [his] possession when it was taken.’  [Citation.]”  (Id. at p. 1462, 39 Cal.Rptr.2d 797, italics omitted, discussing State v. Latham (Wash.App.1983) 35 Wash.App. 862, 670 P.2d 689.)

This court applied similar reasoning in People v. Galoia (1994) 31 Cal.App.4th 595, 37 Cal.Rptr.2d 117, where a Good Samaritan was struck while attempting to apprehend a store thief.   Although well intended, the intervenor was not a robbery victim because he neither had actual possession of the stolen items nor was an employee or agent of the store.  (Id. at pp. 597-599, 37 Cal.Rptr.2d 117;  see also Sykes v. Superior Court (1994) 30 Cal.App.4th 479, 35 Cal.Rptr.2d 571 [security guard from another establishment not robbery victim although he pursued and was threatened by defendant].)

Relying on a passage from a criminal law text book, the majority nonetheless insists we should disregard the purported victim's relationship to the stolen property in determining whether a robbery occurred.  (Maj. opn., ante, at p. 668.) The quoted passage is actually from a New Jersey case which discusses the “narrow issue [of] whether the sudden snatching of a purse from the grasp of its owner involves enough force to elevate the offense from theft from the person to robbery.”  (State v. Sein (N.J.1991) 124 N.J. 209, 590 A.2d 665, 666, reprinted in Cook & Marcus, Criminal Law (3d ed. 1995) § 5.02, p. 329.)   The New Jersey case has absolutely nothing to do with the issue now before us and thus speaks loudly to the dearth of authority supporting the majority's position.

That brings us to People v. Mai (1994) 22 Cal.App.4th 117, 27 Cal.Rptr.2d 141, upon which the majority also relies.   There, Khoa Anh Nguyen was in the office of a relative's gold business with two others when defendants burst in with guns and duct tape and ordered everyone to lie on the floor.   The heist was thwarted when Khoa's relative opened fire on the intruders.   The opinion does not reveal what Khoa was doing in the office or his relationship to the gold business.   Thus, it is unclear whether he had actual or constructive possession of the gold.   Indeed, these facts were immaterial because the defendant conceded at trial that Khoa was an attempted robbery victim.  (Id. at p. 121, fn. 1, 27 Cal.Rptr.2d 141.) Nevertheless, in what can only be considered rank dicta, this court gratuitously opined a robbery “ victim need not own, possess, or even have the right to possess the property sought by the perpetrator.”  (Id. at p. 129, 27 Cal.Rptr.2d 141.)   It comes as no great surprise that this remarkable proposition is not followed by citation to any authority.   The reason being of course is that it reads the possession requirement right out of the robbery statute.

As explained, the law on this point is clear.   Although the particular capacity in which the victim manifests an interest in the property is immaterial, “it is essential that he [or she] have possession or control of the property because, by definition, property cannot be taken from the person or presence of another unless he [or she] had possession or control of the property.”  (4 Wharton's Criminal Law (15th ed. 1996) § 467, p. 53, fn. omitted.)

In the present case, Jiminez was a mere visitor at G & G when appellants looted the computer merchandise.   He neither possessed nor had any right to control the property.   Accordingly, unlike G & G's employees, he lacked a sufficient connection to the property to be considered a victim of the computer-merchandise robbery.

FOOTNOTES

1.   Kong was ordered to serve 11 years in prison:  the upper term of five years on the first count of robbery, consecutive one-year terms for each of five further counts of robbery and a consecutive one-year term for being vicariously armed in the first count.   Each of the other three defendants received a total sentence of 28 years 8 months:  the upper term of five years for the first count of robbery, a consecutive four-year term for personally using a gun during that robbery, nine consecutive one-year terms for the remaining robbery and conspiracy counts and consecutive terms on the remaining weapon enhancements totaling ten years eight months.

2.   All the witnesses referred to this weapon as a “machine gun,” although the photograph depicting the type of weapon was of an Uzi-type assault weapon.

3.   At trial, the officer who prepared the police report on the day of the February robbery testified that Bundali originally said he only saw the faces of the first two robbers.   At least, Bundali only provided descriptions of the first two robbers.   At trial, Bundali denied such a statement and positively identified all four defendants.

FOOTNOTE.   See footnote *, ante.

SILLS, Presiding Justice.

CROSBY, J., concurs.

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