Opinion
D057927 Super. Ct. No. SCD 216892
12-07-2011
THE PEOPLE, Plaintiff and Respondent, v. VANNA CHHEUNI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed.
A jury convicted Vanna Chheuni of five counts of first degree robbery (Pen. Code, § 211) five counts of assault with caustic chemicals (§ 244), five counts of making a criminal threat (§ 422) and one count of first degree burglary (§ 459). It also found true allegations that she vicariously used a firearm in each count. (§ 12022, subd. (a)(1).)
All statutory references are to the Penal Code unless otherwise stated.
The court sentenced Chheuni to 19 years and four months in state prison as follows: the upper term of nine years for one robbery count, and consecutive two-year terms for each of the other four robberies; one year for a section 12022, subdivision (a)(1) enhancement, and consecutive four-month terms for four such enhancements. All other sentences were stayed under section 654.
Chheuni contends the trial court's instruction with a former version of CALCRIM No. 400 was erroneous because no substantial evidence supported the finding she had committed criminal threats and assaults with caustic chemicals with the same mental state as her co-participants, Kevin Sellers (Sellers) and Trieu Nguyen (Tommy). Further, she argues the instruction failed to inform the jury that an aider and abettor can be guilty of a lesser crime than the perpetrator. She adds that the error violated her constitutional rights to a jury trial, due process and to present a defense under the Fifth, Sixth, and Fourteenth Amendments of the federal Constitution. Chheuni also contends the court abused its discretion in sentencing her to the upper term on a robbery count based solely on her co-participants' actions. We affirm the judgment.
Kevin Sellers was tried as Chheuni's codefendant. Because Trieu Nguyen and Yoshi Nguyen share the same surname, for clarification, we refer to them by their first names.
FACTUAL AND PROCEDURAL BACKGROUND
Chheuni does not challenge the sufficiency of the evidence to support her convictions and we therefore summarily set forth the facts for the purpose of evaluating her claims of error. (People v. Miramontes (2010) 189 Cal.App.4th 1085, 1090.)
On October 17, 2008, at approximately 8:30 p.m., Yoshi Nguyen (Yoshi) was at the home where he rented a room from a couple, K.D. and his wife, H.P. Two men, Tommy and Sellers, came around the side of the house with guns. They saw Yoshi, covered their faces, and ordered him to be quiet and turn around. They forced Yoshi into a back living room, covered his head with fabric, tied his hands behind his back, tied his feet, and forced him to lie on the floor. One man put a gun to Yoshi's head and threatened to shoot him. The gunmen covered Yoshi's head with another material to further prevent him from seeing, and wrapped a metal chain around him.
Yoshi heard the gunmen round up his roommates, Tam Pham and Hung Tran, who were made to lie next to him. Approximately 15 minutes later, Chheuni joined the gunmen and sat at a dining table behind the victims. The gunmen demanded the victims' money and searched their bedrooms. At least four times, Sellers or Tommy ordered Chheuni, "Keep an eye on them. They move, shoot them." At one point, Chheuni loosened the bind around Yoshi's neck. The robbers poured lighter fluid on Yoshi and his roommates. One of the gunmen told the victims at least three times, "We going to burn you guys. This is your last chance." Yoshi heard the robbers lighting a lighter.
The owners of the house arrived home at approximately 11:25 p.m., and soon they too were forced in the area with the other victims. Later, the gunmen moved all victims into the master bedroom, threw them on the floor, covered them with a blanket and poured lighter fluid over them. One gunman said something like, "This is your last chance. You all have to die." Immediately afterwards, Yoshi heard police arrive.
H.P. testified that upon returning home with her husband, she entered their house and a man with his face concealed pointed a gun at her, warning her not to turn on her bedroom light or he would shoot her. The man asked for money, grabbed her purse which contained almost $1000, pushed her to the ground, covered her head with a T-shirt, and tied her hands and feet. One man dragged her into the master bedroom. One man held her at gunpoint and raped her. Afterwards, the other man raped her, asked for money, and threatened to cut off her hand so she could not work. When the second man left the room, she dialed 911 and left the phone off the hook. The men threw gasoline on top of her, her husband and the others and threatened to burn them if they did not give them money.
Police officers testified they arrived at the house around 12:20 a.m., set up a perimeter outside, called for reinforcement and waited outside. Chheuni walked out of the house and police detained her. Minutes later, Tommy walked out, saw the police, and fled, but he was apprehended. Police also caught Sellers fleeing the house. Sellers had approximately $1200 in cash on his person. Police found cell phones, electronic equipment, including computers, jewelry and other items that the robbers had taken or set aside on the floor in the front living room.
DISCUSSION
I.
Without objection, the court instructed regarding aiding and abetting with CALCRIM Nos. 400 and 401. The court instructed the jury regarding the relationship between being a direct perpetrator and aider and abettor with the 2009 version of CALCRIM No. 400, as follows: "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. [¶] A person is equally guilty of the crime whether he or she committed it
personally or aided and abetted the perpetrator who committed it." (Emphasis added.)
The 2010 revised CALCRIM No. 400 states in the last sentence of the first paragraph that: "A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator . . . ," deleting the word "equally" found in the 2009 version.
The court instructed the jury with the CALCRIM No. 401 pattern instruction: "To prove that a defendant is guilty of any crime based on aiding and abetting, the People must prove that: [¶] One, the perpetrator committed the crime. [¶] Two, the defendant knew that the perpetrator intended to commit the crime. [¶] Three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime. [¶] And, four, the defendant's words or conduct did, in fact, aid and abet the perpetrator's commission of that crime. [¶] Now, someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose, and if he or she specifically intends to and does, in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime. [¶] If all of these requirements have been proved, a defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. If you conclude that a defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether that defendant was an aider and abettor. [¶] However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not by itself make him an aider and abettor."
The court also instructed with CALCRIM No. 402 regarding natural and probable consequences of the target offenses of robbery and burglary, and the non target offenses of assault with caustic chemicals and making criminal threats.
Specifically, the court instructed with the language of CALCRIM No. 402:
"You may recall that both defendants are charged in counts 4 through 8 with robbery that is performed in an inhabited residence, and they're charged in count 9 with residential burglary. These offenses, the robberies and the burglary, are referred to hereafter in this instruction as the target offenses. Each of these counts constitutes a target offense for the purposes of the following instructions. In addition, the defendants are charged in counts 10 through 14 with assault with caustic chemicals, and in counts 15 through 19 with criminal threats. These are not target offenses.
"You must first decide whether a defendant is guilty of one or more of the target offenses, that is, robbery perpetrated in an inhabited residence or residential burglary. If you find that a defendant is guilty of any of the target offenses, you must then decide whether he or she is guilty of any of the crimes charged in counts 10 through 14, assault with caustic chemicals, or in counts 15 through 19, criminal threats.
"Under certain circumstances, a person who is guilty of one crime may also be guilty of other crimes that were committed at the same time.
"To prove that a defendant is guilty of any of the crimes charged in counts 10 through 14, namely, assault with caustic chemicals, and in counts 15 though 19, namely criminal threats, the People must prove that:
"One, the defendant is guilty of one or more of the target offenses.
"Two, during the commission of the target offense, a co-participant in that target offense committed one or more of the offenses charged in counts 10 through 14, assault with caustic chemicals, and in counts 15 through 19, criminal threats.
"And three, under all the circumstances, a reasonable person in the defendant's position would have known that the commission of an offense charged in counts 10 through 14, namely, assault with caustic chemicals, or in counts 15 through 19, namely, criminal threats, was a natural and probable consequence of the target offense or offenses.
"A co-participant in a crime means the perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim or innocent bystander.
"A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes.
"In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If any of the crimes charged in counts 10 through 14, namely, assault with caustic chemicals, and counts 15 through 19, namely criminal threats, was committed for a reason independent of the common plan to commit one or more of the target offenses, then the commission of that crime was not a natural and probable consequence of the target offenses.
"To decide whether the crimes alleged in counts 10 through 14, assault with caustic chemicals, and counts 15 through 19, criminal threats, have been committed, please refer to the separate instructions that I will give on those crimes."
"We review defendant's claims of instructional error de novo. [Citation.] 'In conducting this review, we first ascertain the relevant law and then "determine the meaning of the instructions in this regard." [Citation.] [¶] . . . " 'In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]' " [Citation.] "Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." ' " (People v. Johnson (2009) 180 Cal.App.4th 702, 707; People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
"When considering a challenge to a jury instruction, we do not view the instruction in artificial isolation but rather in the context of the overall charge. [Citation.] For ambiguous instructions, the test is whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction." (People v. Mayfield (1997) 14 Cal.4th 668, 777; People v. Young (2005) 34 Cal.4th 1149, 1202.) In making this determination, we "must consider the arguments of counsel in assessing the probable impact of the instruction on the jury." (People v. Young, supra, at p. 1202.)
Here, we also take into account that during deliberations, the jury asked the court two questions regarding aiding and abetting. First, "In regards to counts 20-24, [two counts of making a criminal threat (§ 422), two counts of forcible rape (§ 261 subd. (a)(2)), and one count of forcible rape while acting in concert (§§ 261 subd. (a)(2), 264.1)] can the defendants be found guilty of all those charges if we assume 2 separate rapists (i.e. by aiding and abetting one of the rapes)? This would be separate from acting in concert." Second, "For all counts for both defendants, can we consider aiding and abetting equal to actually performing the act itself? For example, does one have to have been the person to actually poured [sic]the lighter fluid (or just aided and abetted) to be considered guilty? Similarly, does one have to have spoken the verbal threats (or just aided and abetted) to be considered guilty?" The court responded to both questions by referring the jury to CALCRIM Nos. 400, 401 and 402 regarding aiding and abetting.
We note that defense counsel conceded the criminal threats charges would be inseparable from the burglary and robbery charges, arguing to the jury: "If you find that Ms. [Chheuni] is an aider and abettor to the burglary and robbery, then I think my view is that certainly the threats are a natural and probable consequence. If you agree to assist in a robbery, a threat is part and parcel of a robbery. It's, in my view, actually part of the robbery and not, in fact, a separate crime. But if you find Ms. [Chheuni] aided and abetted robbery, then the threat charge is, from my view, a natural and likely consequence."
In light of the totality of the court's instructions and the argument of defense counsel, we conclude the jury was not reasonably likely to misinterpret the court's instruction with CALCRIM No. 400. The jury was fully apprised of Chheuni's role in the robberies, in comparison to her co-participants' greater roles. The evidence showed Chheuni knew the plan was to commit the robbery and she participated from the beginning. The victims heard the principals instruct her to watch the victims and that if they moved they could be shot. Chheuni complied by watching over the victims. She was aware the co-participants had tied, blindfolded and threatened the victims with bodily harm. For approximately four hours, Chheuni did not call police to assist the victims, or allow them to escape, and she did not attempt to dissuade her coparticipants. Her actions aided and facilitated the crimes, permitting Sellers and Tommy to freely search the house for valuables, rob the victims, rape H.P., and pour lighter fluid on the victims. On this record, it is not reasonably likely the jury would have reached a more favorable verdict if the court had not instructed the jury with the 2009 version of CALCRIM No. 400.
II.
Chheuni contends the court abused its discretion in sentencing her to the upper term on a robbery count, and based its decision on the other robbers' actions instead of on her own conduct. She argues the trial court should have sentenced her to the middle term of four years because "although the victims were badly threatened and abused by the other defendants, [she] played no part in that aspect of the robbery. Her role was simply to watch the victims while they were on the floor. She did not have a weapon and did not threaten the victims. To the contrary, she gave them relief by adjusting their bindings so that they were more comfortable."
Under amended section 1170, "trial courts now have the discretion . . . to select among the lower, middle, and upper terms specified by statute without stating ultimate facts deemed to be aggravating or mitigating under the circumstances and without weighing aggravating and mitigating circumstances. [Citation.] Rather, 'a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions.' " (People v. Jones (2009) 178 Cal.App.4th 853, 866.) The court may look at relevant circumstances obtained from the case record and the probation officer's report. (Cal. Rules of Court, rule 4.420(b).)
"Generally, determination of the appropriate term is within the trial court's broad discretion [citation] and must be affirmed unless there is a clear showing the sentence choice was arbitrary or irrational." (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) The sentencing court has wide discretion to balance mitigating and aggravating circumstances qualitatively as well as quantitatively. (Ibid.)"One factor alone may warrant imposition of the upper term." (Ibid.)A defendant bears a heavy burden when attempting to show an abuse of discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) " 'In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' " (People v. Superior Court (Alvarez)(1997) 14 Cal.4th 968, 977-978.)
Trial courts are not restricted to the aggravating factors listed in the California Rules of Court, but it remains true that an aggravating circumstance must be one that makes the offense " 'distinctively worse than the ordinary' " and "makes [the defendant] deserving of punishment more severe than that merited for other offenders in the same category." (People v. Black (2007) 41 Cal.4th 799, 817.)
Here, the trial court addressed Chheuni's role in the crimes: "When I look at Ms. [Chheuni], I do find, of course, that her role was a minor one. And in some respects, [defense counsel's] descriptive 'passive' is apt. It certainly seems to me that she was, in some respects, subject to the will and control of Mr. Sellers. [¶] I don't see anything that would amount to a defense, but certainly there was influence there that, though not amounting to a defense, in some ways reduces her culpability. In terms of the physical acts that she did in the robbery, they are indicative of a minor role."
The court made findings the victims were "particularly vulnerable" (Cal. Rules of Court, rule 4.421(a)(3)), noting the length of time the robberies were ongoing, and that during most of this time, Yoshi, Tram Hung, and Tam Pham were immobilized, tied up, lying forward on the floor and rendered helpless. The court elaborated: "I don't believe it is an exaggeration to say that from minute to minute, [the victims] didn't know if they were going to live or die, if they were going to be summarily executed or burned to death. There were repeated threats made to them. To say that they were particularly vulnerable and the crimes [are] the worst of the worst is, in some respects, to make an understatement."
The court also made findings under California Rules of Court, rule 4.421(a)(8) that the crime indicated planning, sophistication, or professionalism: "It's significant that Ms. Chheuni was among the, I infer at least, the participants waiting in the car outside of the house for some period of time before this attack was launched. We had, I think, testimony from neighbors that would suggest the presence of a female there. In other words, she was involved not only for the three or four hours once they're inside the house, but also for some period of time in advance with the other defendants. This was not a spur-of-the-moment act, this was not an impulsive act. It was a premeditated act and one that, frankly, took some patience on the part of the attackers."
A neighbor had testified at trial that at approximately 8:00 p.m., he had seen a car parked in front of the residence where the crimes occurred. As he approached, a woman in the car ducked and he could only see one other passenger.
--------
The court added, "I think there are cases in which the conduct is so bad, and it's so obvious that it's bad, it is so malum in se, that even a minor participant in that conduct has put himself or herself in the upper range of the sentencing triad. And, frankly, I believe these robberies are that kind of case. [¶] I think that the aggravated factors that I've referred to and particularly the callousness and cruelty enhanced by the length of time that Ms. [Chheuni] was there as a co-principal outweigh all the mitigating factors, including her minor role and her background [of hardship as a Cambodian immigrant]."
In exercising its abundant discretion, the court evaluated Chheuni's minor role in the crimes, and carefully weighed the aggravating and mitigating factors before concluding that the aggravating factors predominated. In light of the court's thorough analysis, we reject Chheuni's contention that, "A sentencing judge who had properly weighed the favorable factor of [Ms. Chheuni's] treatment of the victims, particularly given her minimal role in the offenses, would have chosen to impose a middle term sentence for count 4." We conclude the trial court did not abuse its discretion in sentencing her to the upper term on a robbery count.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR:
HALLER, Acting P. J. McDONALD, J.