Opinion
G054727
05-25-2018
THE PEOPLE, Plaintiff and Respondent, v. THIEN HOANG NGUYEN, Defendant and Appellant.
Paul J. Katz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15WF0757) OPINION Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed. Paul J. Katz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Thien Hoang Nguyen stole a sports utility vehicle (SUV) and crashed into two cars while three young children were inside of the stolen vehicle. One child was in the front passenger seat; two children were in the backseat. The prosecution charged Nguyen with three counts of kidnapping during a carjacking, three counts of child abuse likely to produce great bodily harm, and related crimes. At trial, at the close of the prosecution's case, Nguyen moved for a directed acquittal as to the counts involving the children in the backseat. (Pen. Code, § 1118.1.) The trial court denied the motion. The jury later convicted Nguyen of the charged and/or included offenses.
Further undesignated statutory references are to the Penal Code.
Nguyen is appealing from the denial of his motion for directed acquittals. Nguyen argues that the prosecution did not present substantial evidence that he was aware there were two children in the backseat. We disagree and affirm the judgment.
I
FACTS AND PROCEDURAL HISTORY
On April 10, 2015, at about 11:45 a.m., Andrew D. parked his SUV at a strip shopping center in Westminster. Andrew had his three children with him. Eleven-year-old Kyle was in the front passenger seat. Nine-year-old Natalie was in the backseat, directly behind the driver's seat, sitting on a booster seat. Five-year-old Nickson was also in the backseat, behind the front passenger seat, strapped into a child's safety seat that extended above the height of his head.
Andrew had parked the SUV in front of a water store, where he intended to fill three empty bottles and to get three cups of water for his children. Andrew anticipated being inside for less than a minute, so he lowered the windows a little and left the vehicle running with the air conditioning on. Andrew had installed additional tinting on some of the SUV's windows, but it was still possible to see into the vehicle. Andrew got out of the driver's seat and retrieved the empty water bottles from the back trunk. Andrew then walked into the water store.
While Andrew was in the water store, Nguyen approached the SUV by walking around its front hood; Nguyen opened the driver's side door, and entered the vehicle. Nguyen backed out of the parking space, then drove out of the parking lot and onto an adjoining street. Kyle was scared and asked Nguyen, "What are you doing?" Nguyen turned to look at Kyle, mumbled something to himself, and kept on driving. Natalie and Nickson said nothing to Nguyen, according to Kyle.
After driving for about half a mile, Nguyen approached an intersection, where a few cars had stopped at a red light. Nguyen hit the passenger side of a Toyota Camry. Nguyen then hit the rear of Toyota Corolla. Nguyen then backed up a little bit, and then drove forward, hitting the rear of the Corolla again. At this point, Kyle managed to get out of the SUV and help his two siblings get out. All three children ran toward a store located on the corner. The children were screaming and crying.
Nguyen backed up the SUV again, and then drove forward hitting the rear of the Corolla a third time. Nguyen was then able to drive around the Corolla and through the intersection. Police officers pursued Nguyen in a high-speed chase. Nguyen drove through several red lights, appeared to intentionally ram into a third vehicle, and ultimately surrendered.
Defense Evidence
Nguyen testified that prior to entering the SUV, he had not seen anyone inside. Nguyen said that once he got inside (in order to sleep), he saw Kyle in the front passenger's seat. Nguyen testified that within "two seconds" of entering, he backed the SUV out of the parking space without looking over his shoulder or looking into the rearview mirror.
Nguyen said that he did not notice the two younger children in the backseat until he approached the intersection where he collided into the two vehicles. Nguyen testified that he heard the two children talking and when he turned around to look he accidentally collided into the two vehicles. Nguyen said that after the collision he pushed the unlock button to allow all of the children to get out of the SUV. Nguyen testified that he told Kyle to get out of the SUV.
Court Proceedings
The prosecution charged Nguyen with 10 crimes: three counts of kidnapping during a carjacking (Kyle, Natalie, and Nickson); three counts of child abuse (Kyle, Natalie, and Nickson); three counts of aggravated assault (the three drivers Nguyen was alleged to have crashed into); and one count of evading police while driving recklessly. (§§ 209.5, subd. (a), 273a, subd. (a), 245, subd. (a)(1); Veh. Code, § 2800.2.)
At a jury trial, at the close of the prosecution's case-in-chief, Nguyen moved to dismiss the charges involving Natalie and Nickson (counts two, three, five, and six), as well one of the aggravated assault charges (count nine). The trial court denied the section 1118.1 motion.
The court also denied the same section 1118.1 motion at the close of Nguyen's case, but that motion is not the subject of this appeal.
The jury convicted Nguyen of all the charged crimes, with the exception of count two (Natalie) and count three (Nickson). As to those counts, the jury found Nguyen guilty of the lesser-included offense of attempted kidnapping during a carjacking. (§§ 209.5, subd. (a), 664.) The court imposed a total sentence of 16 years, four months to life in state prison.
II
DISCUSSION
"In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal." (§ 1118.1.)
In determining whether the evidence was sufficient—either to sustain a conviction or to support the denial of a motion for directed acquittal—the standard of review is the same. (People v. Hajek And Vo (2014) 58 Cal.4th 1144, 1182-1183, overruled on other grounds by People v. Rangel (2016) 62 Cal.4th 1192, 1216.) We review the record in the light most favorable to the judgment; we "'"determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."'" (Hayek And Vo, at pp. 1182-1183.) In the case of a motion for acquittal, we review the evidence in the record at the time the motion was made. (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213.)
On our own motion, we directed the superior court to transmit all of the trial exhibits to aid in our review. (Cal. Rules of Court, rule 8.224(d).) However, we have only considered those exhibits that were introduced during the prosecution's case-in-chief.
The Crimes Required Nguyen to be Aware of the Children's Presence in the Backseat
Nguyen argues (and the Attorney General concedes) that for him "to have kidnapped Natalie and Nickson during a carjacking, or to have abused them, he had to have known they were in the SUV with him." We agree.
A carjacking is similar to a robbery. Generally, a defendant commits a carjacking when he steals a motor vehicle through the use force or fear. (§ 215.) If, during the commission of a carjacking, the defendant kidnaps a person, he may then be guilty of the more serious crime of kidnapping during the commission of a carjacking. (§ 209.5.) The prosecution must prove that the defendant intended to commit the kidnapping in order to effect his escape, or to prevent the victim from sounding an alarm. (People v. Perez (2000) 84 Cal.App.4th 856, 861.) Therefore, in order to have intended to kidnap a person during a carjacking, we agree that there is an implicit requirement that the defendant know of the intended victim's presence in the carjacked vehicle.
Child abuse likely to produce great bodily harm requires the prosecution to prove: "1. The defendant willfully inflicted unjustifiable physical pain or mental suffering on a child; [¶] AND [¶] 2. The defendant inflicted pain or suffering on the child under circumstances or conditions likely to produce great bodily harm. [¶] . . . [¶] Someone commits an act willfully when he or she does it willingly or on purpose." (CALCRIM No. 821, italics added.) Again, we agree with the parties that in order to have willfully inflicted abuse on a child, there is an implicit requirement that the defendant must be aware of the presence of the child.
There Was Substantial Evidence Nguyen Was Aware of Natalie and Nickson's Presence
Nguyen argues that "the state did not present substantial evidence" he was aware of the two children in the backseat of the SUV. Therefore, he argues: "At the close of the state's case, then, the superior court should have granted Nguyen's motion to dismiss the counts involving those two children." We disagree.
Nguyen apparently concedes that his own testimony (that he became aware of Natalie and Nickson in the backseat), constitutes substantial evidence to sustain his convictions. --------
A defendant's knowledge or intent is invariably shown by circumstances surrounding the offense and any reasonable inferences drawn from that circumstantial evidence. (See People v. Groom (1964) 60 Cal.2d 694, 697 [defendant's knowledge of the presence of narcotics was "established by circumstantial evidence and any reasonable inferences drawn from such evidence"].) "An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action." (Evid. Code, § 600, subd. (b).) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing from that evidence. (In re Michael D. (2002) 100 Cal.App.4th 115, 125-126.)
Here, it can be inferred from the circumstantial evidence presented by the prosecution during its case-in-chief that Nguyen was aware of the two children in the backseat. That is, the jury could have reasonably inferred that Nguyen knew of their presence either before he entered the SUV, or at various points thereafter.
A percipient witness who was parked next to Andrew's SUV, and who was standing outside of his vehicle at the time of the taking, testified at trial. The witness said that after he saw Andrew enter the water store, he saw Nguyen approach the SUV. The witness said that Nguyen walked along the front hood, walked to the driver's door, and then entered the SUV. There was also testimony from Andrew that nine-year-old Natalie was seated on a booster seat behind the front passenger seat, and five-year-old Nickson was strapped into a larger type child seat behind the driver's seat. Based on this evidence, and the photographs of the SUV, a jury could have reasonably inferred that Nguyen was able to see all three children prior to entering the vehicle.
There was testimony that after Nguyen entered the SUV, he backed out of the parking space, then drove forward out of the parking lot, and then onto the adjoining street. At trial, during the motion for directed acquittals, the prosecutor argued that Nguyen likely either turned around or looked in the rearview mirror prior to backing up. He argued that Nguyen probably saw the two children in the backseat at this time. We agree these are reasonable inferences based on the commonly understood actions of drivers as they back out of parking spaces. Further, the pictures of the stolen SUV reveal that the passenger compartment is relatively compact. Based on the pictures of the vehicle, as well as pictures of the two children (while small, they were not infants or toddlers), we think it would have been reasonable for the jury to infer that as Nguyen was either backing up or driving, he likely would have seen the two children who were seated just a few feet behind him.
Nguyen argues that the "evidence, viewed in the light most favorable to the prosecution, presents only the possibility that [he] noticed Natalie and Nickson while they were in the car." Nguyen cites People v. Ramon (2009) 175 Cal.App.4th 843, 853 (Ramon), for the proposition that "a mere possibility is not sufficient to support a verdict."
However, the distinguishing circumstances in Ramon, supra, 175 Cal.App.4th 843, support our analysis. In Ramon, an officer stopped two gang members in a stolen vehicle in their gang's territory; there was an unregistered gun in the vehicle. (Id. at p. 847.) The prosecution's gang expert opined that defendant committed the crimes of driving a stolen vehicle and possessing an unregistered firearm with the specific intent to benefit his gang. (Id. at pp. 847-848.) The expert essentially relied on only two facts to support his opinion: defendant was with another gang member and they were within their gang's territory. The Court of Appeal reversed the defendant's convictions, finding the evidence relied on by the expert to be speculative. (Id. at p. 851.) "These facts, standing alone, are not adequate to establish that [the defendant] committed the crime with the [requisite] specific intent . . . ." (Ibid.) The court concluded that the "expert simply informed the jury of how he felt the case should be resolved. This was an improper opinion and could not provide substantial evidence to support the jury's finding." (Ibid.)
Here, unlike the appellate court in Ramon, we are not faced with improper expert opinion testimony, nor are we confronted with speculative evidence. The prosecution's case largely rested on the testimony of several percipient witnesses, whose individual accounts were remarkably consistent, and the jury's familiarity with automobiles. The remaining evidence consisted of photographs, maps, and a video. Based on the entirety of this evidence, the jury could have reasonably inferred—rather than merely speculated as in Ramon—that Nguyen was aware of the presence of Natalie and Nickson in the backseat, either before or during the carjacking of the SUV.
Finally, Nguyen cites the jury's questions during its deliberations, and asks us to consider the jury's verdicts as to the counts involving Natalie and Nickson (attempted kidnapping during a carjacking). He argues that "this jury's transparent decision-making process highlights the evidentiary hole in the state's case." But in this appeal, Nguyen is solely challenging the trial court's ruling on his motion for directed acquittals that he made at the close of the prosecution's case-in-chief. (§ 1118.1.) Therefore, we can only consider the state of the evidence at the time Nguyen made his motion; we cannot consider any subsequent developments during the trial. (See People v. Cole, supra, 33 Cal.4th at pp. 1212-1213.)
III
DISPOSITION
The judgment is affirmed.
MOORE, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.