Opinion
G036694
5-31-2007
THE PEOPLE, Plaintiff and Respondent, v. ALBERT LOC NGUYEN and MICHAEL TOAN VU, Defendants and Appellants.
Terrence Verson Scott, under appointment by the Court of Appeal, for Defendant and Appellant Albert Loc Nguyen. Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant Michael Toan Vu. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon and Angela M. Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
Following a bench trial, the court convicted Albert Loc Nguyen and Michael Toan Vu of three counts each of attempted murder (Pen. Code, §§ 187, subd. (a), 664 [counts 1, 2, & 3]) and one count each of participation in a criminal street gang (id., § 186.22, subd. (a) [count 4]). In People v. Nguyen and Vu (Oct. 26, 2005, G033899) [nonpub. opn.] (the First Appeal), we reversed the convictions on counts 1, 2, and 3, affirmed the convictions on count 4, and remanded for sentencing on count 4. In this appeal, Nguyen and Vu appeal their resentences and the denial of their motion to dismiss count 4.
As to both Nguyen and Vu, the court found true the enhancements for participation in criminal street gang activity (Pen. Code, § 186.22, subd. (b)(1)) and vicarious discharge of a firearm (id., § 12022.53, subds. (c) & (e)(1)) alleged with respect to the attempted murder counts. At the time of trial, Nguyen was 16 years of age, and Vu was 15 years of age. The parties stipulated to a juvenile disposition. (See id., §§ 1170.17, subd. (b)(2), 1170.19, subds. (a) & (b).) The trial court initially sentenced Nguyen and Vu each to the maximum term of nine years on count 1 for attempted murder and 20 years on the vicarious discharge of a firearm enhancements, for a total term of 29 years each in the California Youth Authority. (Welf. & Inst. Code, § 726, subd. (c).) On count 4, participation in a criminal street gang, the court imposed the maximum sentence of three years concurrent to the sentence on count 1.
A sentence is deemed a final judgment appealable under Penal Code section 1237, subdivision (a).
Complications arise in what might otherwise be a straightforward appeal because the trial court resentenced Nguyen and Vu and denied their motion to dismiss count 4 before the remittitur issued in the First Appeal. The remittitur issued on February 8, 2006 and was filed in the superior court on February 9. On February 6, 2006, two days before issuance of the remittitur, the trial court conducted a sentencing hearing, at which it resentenced Nguyen and Vu and denied their motion to dismiss count 4. A minute order reflecting those decisions was entered nunc pro tunc on February 8. Nguyen and Vu filed notices of appeal on February 7, the day before the remittitur issued.
The notice of appeal in the First Appeal divested the trial court of jurisdiction until the remittitur issued on February 8, 2006. Acts of judicial discretion taken before a remittitur issues are void. We grant Nguyens motion to deem the notices of appeal timely because filing a notice of appeal is a ministerial act rather than an act of judicial discretion. We conclude, however, the trial court lacked jurisdiction on February 6, 2006 to resentence Nguyen and Vu and to consider their motion to dismiss count 4. For that reason, the resentences are void, and we are compelled to reverse and remand for the sole purpose of resentencing under count 4. We note that the trial court was correct to deny the motion to dismiss count 4 because our opinion in the First Appeal expressly and unequivocally affirmed the convictions on that count.
Another wrinkle in this matter is that Nguyens counsel submitted a brief on the merits, while Vus counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), even though both received the same two-year sentence for the same crime. Vus Wende brief sets forth the facts of the case and requests that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel for Vu suggests we consider three potential issues, two of which are argued on the merits in Nguyens brief. (Vu was given 30 days to file written arguments in his own behalf, but did not do so.) To simplify matters, our discussion below applies equally to Nguyen and Vu.
FACTS
Our opinion in the First Appeal recited the facts as follows.
"We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.)
"I. EVIDENCE OF THE CONSPIRACY AND OF THE SHOOTING INCIDENT
"Nguyen and Vu were members of TRG [Tiny Rascals gang], a criminal street gang in Orange County. TRGs primary activities were assaults, shootings, and automobile thefts. In March 2003, Nguyen was 15 years of age, and Vu was 14 years of age.
"Around noon on March 16, 2003, Nguyen and Vu learned that Vus friend, P.N., had been severely beaten at a local pool hall by members of the YL [Young Loccs], a criminal street gang from Long Beach. P.N. was a member of NFJ [Nip Family Junior], a criminal street gang in Orange County. YL and NFJ were rival gangs.
"Later in the afternoon of March 16, Nguyen and Vu met with P.N. and several NFJ members at a mutual friends house in Westminster to discuss retaliation against YL for the attack on P.N. Nguyen and Vu were not NFJ members, and TRG and NFJ were not allied gangs. (The gang experts testimony was inconsistent on whether TRG and NFJ were allies . . . .) Nguyen and Vu were allowed to `hang out with NFJ members because P.N. and Vu had been friends before joining different gangs. About 20 to 25 people were at this meeting, including NFJ members R.H., a friend of Vu, and Q.P., a friend of Nguyen.
"The NFJ members at the meeting were `pissed and discussed the need for a `payback against YL for beating up P.N. The group decided to drive in patrols looking for YL members to beat up. No one mentioned guns, knives, or weapons because, according to Vu, the group decided only to `beat the crap out of the YL gang members who had attacked P.N.
"When `they declared, `[e]veryone go, Anh (moniker `Scrappy) drove away in a light-colored sport utility vehicle (SUV), while T.B. Vu (moniker `Voodoo) drove away in a green Honda Accord. Vu, Nguyen, and S.T. (another NFJ member) rode in the backseat of the SUV, while R.H. rode in the front seat next to Scrappy. Q.P. rode with Voodoo in the green Honda. Vu did not believe anyone in either car had a gun; Nguyen believed someone in the Honda, but no one in the SUV, had a gun.
"Meanwhile, Brian N. and his friends Kenneth P. and A.M. left a cyber café at the corner of Westminster Avenue and Euclid Street in Garden Grove and walked to a liquor store. Brian, Kenneth, and A.M. were members of the VNF [Vietnam Forever] criminal street gang from Long Beach. At the time, Brian and Kenneth were 14 years old, and A.M. was 15.
"Brian, Kenneth, and A.M. left the liquor store and walked toward a bus stop. They noticed a green Honda slowly approaching them from behind. A man in the backseat of the Honda yelled, `where are you from, meaning, to which gang did they belong. Kenneth replied, `[w]e are from nowhere. The man in the Honda repeated the question. This time, A.M. replied, `VNF—Vietnam Forever. The man in the Honda yelled, `fuck VNF, pulled out a handgun, and cocked it. As Brian, Kenneth, and A.M. ran between parked cars for protection, they heard multiple gunshots. None was hit.
"After the shooting, Voodoo used a cell phone to call Scrappy, who was driving the SUV in which Vu and Nguyen were passengers. The SUV was not in the same area as the Honda and had not encountered any YL gang members. Voodoo told Scrappy there had been a shooting and to pick `them up. Scrappy announced, `[m]y homies blasted somebody. After driving for about 30 minutes looking for Voodoo, Scrappy kicked Vu, Nguyen, and S.T. out of the SUV to make room for Voodoo and Q.P. Vu, Nguyen, and Steve walked back toward the cyber café.
"Around 5:00 p.m. on March 16, 2003, Garden Grove Police Officers Johnson and Rosario were investigating another crime near the cyber café when they heard five to ten gunshots. Johnson drove his patrol car to the parking lot of a shopping center which included a liquor store, a billiard hall, and a cyber café. While driving through the parking lot, Johnson saw three male Asian teenagers about 75 yards from a black Toyota Highlander that had been riddled with bullet holes and had broken windows. The three teenagers were running through the parking lot, ducking between parked cars. Johnson stopped and questioned the three: Their names were Brian N., Kenneth P., and A.M.
"Meanwhile, Rosario received a dispatch to find a green Honda Accord. About 30 minutes later, he found the Honda, abandoned, less than a mile from the bullet-ridden Toyota Highlander. Inside the Honda, the police found a semiautomatic handgun hidden in a sock. The handguns hammer was cocked, but no bullets were in the ammunition chamber. In a second sock found behind the drivers seat, the police found four loose bullets. Near the Toyota Highlander, five expended bullet casings and bullet fragments were found that were identified as having been fired by the gun found in the Honda. A forensic examination of the gun and socks revealed the presence of DNA mixtures, but Nguyen and Vu were eliminated as contributors to those mixtures. Gunshot residue tests for Nguyen and Vu also were negative.
"At about 6:00 p.m. on March 16, Garden Grove Police Officer Loera detained Vu, Nguyen, and S.T. for questioning as they walked toward the cyber café. No arrests were made at the time.
"On April 17, 2003, police officers executed search warrants and arrested several people, including Nguyen and Vu, in connection with the March 16 shooting. The police questioned Nguyen and Vu after arresting them. Vu admitted he had been looking for YL gang members while in the SUV on the day of the shooting. His goal, he said, was to be `[t]op dog within TRG, and, to be promoted, he had to `do work, such as attack rival gang members. Vu would `kick with members of the NFJ gang and go looking for rival gang members with them when he got `bored, which was fairly often. Vu wanted to make a name for himself within TRG by beating up a YL gang member.
"Nguyen admitted he was a member of the TRG, but denied any involvement in the shooting. Nguyen admitted he had attended the NFJ meeting and joined in the search for YL members to beat up in retaliation for the attack on P.N. Nguyen denied seeing a gun at the meeting, but said `there probably was one. . . . [¶] . . . [¶] . . . Because they were talking about payback. He knew `somebody had a gun. Not in my car though.
"II. EXPERT TESTIMONY ON GANGS AND GANG CULTURE
"Officer Peter Vi of the Garden Grove Police Department testified as an expert on criminal street gangs. Working as a member of the criminal gang unit since 1993, Vi has reviewed police reports and field interview cards, assisted investigators on gang-related crimes, interviewed gang members and suspected members, and received about 350 hours in gang training by experts. Vi has testified as an expert on criminal gang activity 37 times, half of which concerned Asian gangs.
"Vi testified TRG is a criminal street gang. Its primary activities were assaults, shootings, burglaries, and car thefts. Vi testified NFJ also is a criminal street gang, and its primary activities were assaults and shootings. In Vis opinion, Nguyen and Vu were active participants in TRG as of March 2003.
"Vi testified that status and respect, both of the gang member individually and of the gang itself, are important in gang culture. To a gang member, respect means power—`[a] power to control a certain neighborhood, certain people. A gang member will use `force or violence on anyone to gain this respect or what they call power. A gang member can earn respect, enhance his status within the gang, and enhance the gangs status by committing crimes, helping fellow gang members commit crimes, or providing financial assistance.
"`Payback or `retaliation is an important concept in gang culture. When a gang member is beaten up by a rival gang, the concept of payback requires revenge. The level of force used in payback is expected to be equal to or greater than the level used in the initial attack. Paybacks are planned and discussed. Vi explained: `It is very helpful for gang members to discuss . . . their retaliation, who is doing what and what to expect because when they come out retaliati[ng], they will come out in force and . . . . [t]hey need to find out who is trustworthy either as to driving a car or holding weapons of any type. So, they need to know this. Part of their planning or discussion before retaliation occur[s].
"It is not uncommon, Vi testified, for a fistfight between rival gang members to escalate to a fatal stabbing or shooting. In Vis opinion, a simple fistfight between rival gang members could prompt a shooting or murder in retaliation. As Vi testified, guns are `tools of the trade for gang members as gang members use guns to commit crimes, retaliate against rival gangs, and protect themselves from rival gang attacks.
"Vi testified the concept of `backup is important in gang culture as a means for gang members to show their allegiance to each other. An active gang member would be expected to back up a fellow gang member by engaging in such activities as acting as a lookout or being a getaway driver in the commission of a crime. Gang members rely for backup only on people they trust.
"Vi testified gangs form alliances to enhance their strength. Alliances often are based on childhood friendships or sibling relationships between members of different gangs. Gang members would be expected to back up members of an allied gang just as they would be expected to back up members of their own gang. By supporting a member of an allied gang, a gang member could enhance his gangs status and his own status within the gang.
"Newer gang members must work for the gang to prove their worthiness. The newer gang member `ha[s] to do things, commit crimes, attack enemies, things like that, to show other older members that he is a guy that . . . [is] beneficial to the gang and a guy to do things for the gang.
"Vi testified the shooting at the VNF members was for the benefit of, at the direction of, and in association with the TRG and NFJ gang. Vi agreed, however, the original plan to beat up YL gang members was `aborted when the VNF gang members identified themselves and Voodoo shot at them in response." (Fn. omitted.)
DISCUSSION
Perfection of an appeal divests the trial court of jurisdiction over a cause and transfers jurisdiction to the appellate court until the remittitur is issued. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196-197; People v. Saunoa (2006) 139 Cal.App.4th 870, 872.) Any proceeding taken after the notice of appeal is filed is a nullity. (Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at p. 197.) Issuance of the remittitur transfers jurisdiction from the appellate court back to the court whose decision was reviewed. (People v. Saunoa, supra, 139 Cal.App.4th at p. 872.) "`Until remittitur issues, the lower court cannot act upon the reviewing courts decision; remittitur ensures in part that only one court has jurisdiction over the case at any one time." (Ibid.)
I. The Notices of Appeal Are Timely.
Nguyen and Vu filed their notices of appeal on February 7, 2006, the day after resentencing and the day before the remittitur issued. On June 9, 2006, Nguyen filed a motion to have his notice of appeal deemed timely pursuant to California Rules of Court, former rule 30.1(b) (now rule 8.308(c)). The Attorney General does not oppose the motion. To save the notices of appeal from being premature, Nguyen urges us to liberally construe and treat them as having been filed after issuance of the remittitur.
California Rules of Court, rule 8.308(c) allows an appellate court to treat a notice of appeal filed before judgment is rendered to have been filed immediately after rendition of judgment. The notices of appeal in this case were filed after rendition of judgment on February 6, 2006 and therefore are not premature within the meaning of rule 8.308(c).
The notices of appeal were timely notwithstanding their filing before issuance of the remittitur. Although judicial proceedings taken before issuance of the remittitur are void, filing a notice of appeal is a ministerial act of the court clerk, not an act of judicial discretion. (8 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs, § 101, p. 891; see Kertesz v. Ostrovsky (2004) 115 Cal.App.4th 369, 377 ["`[a] ministerial act is one that is essentially clerical in nature"].) Thus, we conclude, the notices of appeal were timely filed and are valid.
II. The Trial Court Lacked Jurisdiction to Resentence Before the Remittitur Issued.
The trial court lacked jurisdiction to resentence Nguyen and Vu and to deny their motion to dismiss count 4. In People v. Saunoa, supra, 139 Cal.App.4th 870, the Court of Appeal reversed the defendants conviction and remanded for retrial. The remittitur issued on July 22, 2005. (Id. at p. 872.) The trial court resumed proceedings, however, on May 12, 2005, and the defendants retrial started on July 7, before the remittitur issued. (Ibid.) The jury convicted the defendant on two counts. The Court of Appeal reversed because the trial court lacked jurisdiction to retry the defendant until issuance of the remittitur. (Ibid.) Despite the prospect of a third trial, the appellate court declined to engage in a harmless error analysis: "No authority exists for conducting a harmless error analysis in this context. However wasteful a third trial may seem to respondent, the trial courts failure to wait for remittitur before conducting the retrial renders all proceedings conducted prior to retrial, and their results, null and void." (Ibid.)
Here, the failure to wait for remittitur before Nguyen and Vu were resentenced renders their sentences void. The trial court pronounced judgment orally and denied the motion to dismiss count 4 at the sentencing hearing on February 6, 2006—before issuance of the remittitur. The trial court could not make its rulings lawful by entering a minute order nunc pro tunc on February 8, 2006. Rendition of judgment is an oral pronouncement, while entering the judgment in the minutes is a clerical act. (People v. Mesa (1975) 14 Cal.3d 466, 471.) Once judgment was orally pronounced, it was rendered, and the court could not delay its effect until after remittitur issued by later making the judgment nunc pro tunc. To the contrary, the purpose of a nunc pro tunc judgment is to make the judgment effective retroactively to a date before entry. (7 Witkin, Cal. Procedure, supra, Judgment, § 62, p. 590.) Thus, the effect in this case of the nunc pro tunc judgment would not be to delay the effect of pronouncement of the sentence from February 6 to February 8, but to make pronouncement of sentence retroactive from February 8 to February 6.
Further, a nunc pro tunc order "is generally limited to correcting clerical errors." (People v. Borja (2002) 95 Cal.App.4th 481, 485.) No clerical error was made in this case. Resentencing Nguyen and Vu before the remittitur issued was an act of judicial discretion, not a clerical mistake.
III. The Court Has Authority on Remand Only to Resentence Under Count 4.
We note the trial court was correct to deny the motion to dismiss count 4. Our opinion in the First Appeal expressly and unequivocally affirmed the convictions on count 4. We concluded, "[t]he evidence supported the convictions for participation in criminal street gang activity (count 4)" and rejected Nguyens and Vus challenges to the judgment on that count. That decision is law of the case and must be followed on remand. (People v. Boyer (2006) 38 Cal.4th 412, 441-442; Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491.)
After the First Appeal, we remanded for the sole purpose of resentencing on count 4. "When there has been a decision upon appeal, the trial court is reinvested with jurisdiction of the cause, but only such jurisdiction as is defined by the terms of the remittitur. The trial court is empowered to act only in accordance with the direction of the reviewing court; action which does not conform to those directions is void." (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655; see also Karlsen v. Superior Court (2006) 139 Cal.App.4th 1526, 1530 [citing Hampton].) Accordingly, the trial court in this case has authority only to resentence Nguyen and Vu under count 4 and cannot consider dismissing that count.
IV. Potential Issues Raised by Vu.
Counsel for Vu identified three potential issues: (1) whether our reversal of the convictions on counts 1, 2, and 3 negates the conviction on count 4; (2) whether our opinion in the First Appeal is law of the case depriving the trial court jurisdiction to reconsider the validity of Vus conviction on count 4; and (3) whether the validity of the judgment on count 4 may be contested by petition for writ of habeas corpus.
As explained in part III, our opinion in the First Appeal affirmed the convictions on count 4. That opinion is law of the case and bars the trial court from considering the validity of Vus conviction on count 4. As to the third potential issue, we decline to issue an advisory opinion on that point. (People v. Slayton (2001) 26 Cal.4th 1076, 1084; People v. Guerra (1984) 37 Cal.3d 385, 429.)
We have examined the entire record and counsels Wende brief and have found no other potential issues. (See Wende, supra, 25 Cal.3d 436.)
DISPOSITION
The resentences and the order denying the motion to dismiss count 4 are reversed for lack of jurisdiction. The matter is remanded for the sole purpose of resentencing Nguyen and Vu under count 4.
We concur:
SILLS, P. J.
BEDSWORTH, J.