Opinion
G056782
05-28-2020
THE PEOPLE, Plaintiff and Respondent, v. BINH NGOC NGUYEN, Defendant and Appellant.
Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lane E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and Charles J. Sarosy, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15WF2622) OPINION Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed. Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lane E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and Charles J. Sarosy, for Plaintiff and Respondent.
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After a jury found Binh Ngoc Nguyen guilty of two counts of identity theft and two counts of possession of a forged instrument, the trial court sentenced him to four years, four months in county jail, and imposed various fines and assessments. Nguyen contends there was insufficient evidence he aided and abetted a principal in committing one of the identity theft counts. We conclude substantial evidence supported the jury's verdict because a reasonable jury could find Nguyen acted as a lookout or getaway driver with knowledge of the principal's criminal intent.
Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Nguyen also contends the trial court erred in imposing the fines and assessments without holding a hearing on his ability to pay. Whether a convicted defendant is entitled to a hearing before the sentencing court imposes fines and assessments is currently before the California Supreme Court. (See People v. Kopp (2019) 38 Cal.App.5th 47, 95 [agreeing with Dueñas that due process requires an ability-to-pay determination before imposition of court operations or court facilities assessments, but disagreeing with Dueñas that due process requires a hearing before imposition of restitution fine], review granted Nov. 13, 2019, S257844 (Kopp).) Regardless of our Supreme Court's ruling in Kopp, even if Dueñas applies to Nguyen, we conclude any Dueñas error was harmless beyond a reasonable doubt. Accordingly, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Underlying Facts
The victim Thuy N. testified that in late April 2015, she could not log into her T-Mobile account, and received a message that her account password had been changed. Later she discovered, she could not call the people on her cellular plan. When she went to a T-Mobile store to try to resolve the problem, a store employee informed her an iPhone had been purchased through her account. The employee also informed Thuy that the iPhone would be delivered to a Marriott hotel, not Thuy's house. Thuy filed a report with the Fountain Valley Police Department.
Fountain Valley Police Officers Donald Farmer, Jr., and Detective Jarrod Frahm conducted an undercover surveillance of the Marriott hotel lobby. The detectives were informed that a suspect would be coming to the front lobby to pick up a package containing a fraudulently purchased phone. When codefendant Huan Phi arrived at the front lobby desk and stated he was picking up the package for a friend, Frahm initiated contact and Phi consented to a search. On Phi's person, Frahm found several checks, credit cards, a note containing names and order numbers for iPhone credit cards, and a four-page document containing other individuals' e-mail addresses, social security numbers, and credit card numbers. Two of the checks were written from the account of victim T.I.
Meanwhile, Nguyen was sitting in the driver's seat of a white pickup truck parked outside near the hotel's front entrance doors. After Nguyen was detained, Fountain Valley Police Officer Heather Williams transported him to the police station. There, she searched Nguyen and found a check from Hana Nail Salon, listing Nguyen as the recipient with the memo line specifying "tile labor"; a check from victim T.I., listing "Hoang Nguyen" as the recipient; and a deposit slip for $4,000, containing the name of "Hoang Nguyen."
Officer Williams called the manager of Hana Nail Salon about the check in Nguyen's possession. The manager stated that she lost the check on April 27, 2015, and that she had hired and paid a company, not Nguyen, to perform tile work for the salon.
Officer Williams and Fountain Valley Police Detective Henry Hsu conducted a recorded interview of Nguyen with his consent. During the interview, Nguyen stated that Phi was a friend who occasionally employed him for car repair jobs. Asked about the events that morning, Nguyen explained that Phi and Phi's friend had picked him up in Phi's truck so Nguyen could buy a car part. While Phi was driving, Phi's girlfriend called him, after which Phi said he needed to go to a hotel. When they arrived at the back of the hotel, Phi went inside. Nguyen started to drive the truck to an auto parts store but police officers stopped him as he came around the hotel.
Detective Hsu later investigated the two checks written from the account of victim T.I. in codefendant Phi's possession. Hsu spoke with Ashley Stewart, a U.S. Bank representative, who informed him the checks had been deposited at a U.S. Bank branch in Westminster and provided him with surveillance video. After viewing the surveillance video, Hsu identified Nguyen as the person who deposited the checks on April 18, 2015. B. Jury Verdict and Sentence
Photographs from the surveillance video showing Nguyen were submitted to the jury.
A jury found Nguyen guilty of misuse of personal identifying information of victim Thuy N. (Pen. Code, § 530.5, subd. (a); count 1), fraudulent possession of personal identifying information with a prior conviction (as to Hana Nail Salon) (Pen. Code, § 530.5, subd. (c)(2); count 2), and possession of a forged instrument over $950 (Pen. Code, § 475, subd. (a); counts 3 & 4).
The trial court denied probation and sentenced Nguyen to a total of four years, four months in county jail. It imposed a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), and for each of the four convictions, a court facilities assessment of $30 (Gov. Code, § 70373) and a $40 court operations assessment (Pen. Code, § 1465.8).
II
DISCUSSION
A. Substantial Evidence Supported the Jury's Finding Nguyen Aided and Abetted the Identity Theft of Victim Thuy N.
Nguyen challenges the sufficiency of evidence he aided and abetted codefendant Phi's identity theft. He argues the "evidence fails to show he knew of Phi's criminal intent, or that, with such knowledge, he committed any act with the intent of aiding facilitating, or encouraging [Phi's] commission of the crime."
"'A reviewing court faced with . . . a claim [of insufficient evidence] determines "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citations.] We examine the record to determine "whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] Further, "the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." [Citation.] This standard applies whether direct or circumstantial evidence is involved.'" (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1321-1322.)
"'A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.' [Citations.]" (People v. Hill (1998) 17 Cal.4th 800, 851.) Because there is rarely any direct evidence of a criminal defendant's knowledge or intent, these elements are generally proved with circumstantial evidence. (See, e.g., id. at pp. 851-852 ["although no direct evidence showed defendant acted with the required knowledge and purpose, there was substantial evidence from which a rational trier of fact could have found he in fact possessed such a mental state"].) While mere presence at a crime scene or failure to prevent a crime is not sufficient to prove guilt, these factors may be considered with other evidence in passing on guilt or innocence. (People v. Durham (1969) 70 Cal.2d 171, 181.) Other appropriate factors to consider are the defendant's companionship and conduct before and after the crime, including flight. (People v. Haynes (1998) 61 Cal.App.4th 1282, 1294.)
Here, there was substantial circumstantial evidence Nguyen knew of codefendant Phi's criminal intent and that he acted as a lookout or getaway driver based on his knowledge. Nguyen admitted he and Phi were friends. When Nguyen was arrested, he possessed forged checks, including one from victim T.I. Phi also possessed forged checks, including two checks from victim T.I. About one week before the hotel incident, Nguyen cashed those two checks. On this record, a reasonable juror could infer that Nguyen knew Phi was involved in identity theft crimes, that he participated in those crimes with Phi, and that he knew Phi was engaging in identity theft when Phi went to the Marriott hotel. The jury also could infer that Nguyen was acting as a lookout or getaway driver because he was in the driver's seat of Phi's truck parked right outside the hotel. The men had arrived at the back parking lot of the Marriot hotel, but Nguyen then drove to the front entrance, where he was arrested. The close proximity to the front entrance suggests Nguyen was trying to ensure a quick getaway in case Phi encountered trouble. In sum, the evidence was sufficient to sustain the jury's verdict that Nguyen aided and abetted Phi's identity theft. B. There was no Dueñas Error
Relying on Dueñas, supra, 30 Cal.App.5th 1157, Nguyen contends the imposition of the restitution fine and the court facilities and court operations assessments without a hearing violated his rights under the due process, equal protection and excessive fines clauses of the federal and California constitutions. As noted, whether Nguyen is entitled to a hearing before the sentencing court may impose the fine and assessments is currently before our Supreme Court. (See Kopp, supra, 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)
Unlike Dueñas, Nguyen did not request a hearing on his ability to pay the fines and assessment. Nor did he raise any objections to the fine and assessments under the due process, equal protection or excessive fines clauses. The Attorney General thus maintains Nguyen forfeited his Dueñas claim by failing to raise it in the trial court, whereas Nguyen argues the claim is preserved for appeal because Dueñas, which was decided after he was sentenced, represented an "unforeseen change in the law." We conclude Nguyen's challenge under the excessive fines clause was forfeited. While the Eighth Amendment excessive fines clause was incorporated into the Fourteenth Amendment after Nguyen's sentencing (see Timbs v. Indiana (2019) 586 U.S. ___, ), California courts have entertained challenges to fines under the state constitutional counterpart well before the Timbs decision (see, e.g., People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728). We also note Dueñas did not address the excessive fines clause.
As to Nguyen's challenge under the due process and equal protection clauses, we acknowledge the split of authority among the Courts of Appeal with respect to how unforeseen Dueñas may be said to have been, and whether the novelty of that decision may serve as the basis for excusing a defendant's failure to object in any case. (Compare People v. Castellano (2019) 33 Cal.App.5th 485, 489 [Dueñas was "a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial" and declining to apply the forfeiture doctrine] with People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 [concluding that defendant forfeited challenge to assessments and restitution fine because Dueñas was not "'a dramatic and unforeseen change in the law'"].) We need not decide the forfeiture issue because even if not forfeited, any error was harmless beyond a reasonable doubt. (People v. Jones (2019) 36 Cal.App.5th 1028, 1035 (Jones); People v. Johnson (2019) 35 Cal.App.5th 134, 139 (Johnson).)
Based on the record, we infer that, unlike the probationer defendant in Dueñas, Nguyen has the ability to pay the $580 in fine and assessments, including from probable jail wages. (See People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 [concluding a fine imposed under Penal Code section 1202.4 "may be based on the wages a defendant will earn in prison"]; Pen. Code, § 1202.4, subd. (d) [noting the consideration of a "defendant's inability to pay may include his or her future earning capacity"]; cf. Jones, supra, 36 Cal.App.5th at p. 1035 [noting prison wages range from a minimum of $12 to $56 per month depending on the prisoner's skill level].) The record does not disclose Nguyen suffers from any infirmity precluding him from work. Indeed, by his own admission, he has been paid to repair cars. The idea that Nguyen cannot afford to pay $580 while serving a four-year, four-month sentence is unsustainable. (See Johnson, supra, 35 Cal.App.5th at p. 140 [concluding that "because [defendant] has ample time to pay it from a readily available source of income while incarcerated, the error is harmless beyond a reasonable doubt"]; Jones, supra, 36 Cal.App.5th at p. 1035 [finding any Dueñas error harmless because defendant "will have sufficient time to earn these amounts during his sentence, even assuming [defendant] earns nothing more than the minimum."].) Accordingly, we find any Dueñas error to be harmless beyond a reasonable doubt.
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.