Opinion
D070946
04-19-2017
THE PEOPLE, Plaintiff and Respondent, v. DUNG T. NGUYEN, Defendant and Appellant.
David W. Beaudreau, 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, Barry Carlton and James H. Flaherty III, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD266515) APPEAL from a judgment of the Superior Court of San Diego County, Amalia L. Meza, Judge. Affirmed as modified. David W. Beaudreau, 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, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
Dung T. Nguyen appeals from a judgment entered on his conviction of burglary of an inhabited dwelling and robbery. He contends that the trial court erred in failing to instruct the jury, sua sponte, on self-defense and the victim's use of excessive force as defenses to the robbery charge and that there are clerical errors in the abstract of judgment as to the statutory basis for one of the charges and as to the calculation of custody credits. We agree that the errors in the abstract of judgment must be corrected but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of March 15, 2016, Dov Adams returned home from work and found Nguyen, whom he did not know, emerging from his apartment holding a cigarette pack and a hair trimmer that belonged to Adams. Nguyen came face-to-face with Adams, uttered an apology and fled with the stolen items.
Adams chased Nguyen, who dropped the cigarette pack and hair trimmer as he ran. After a short distance, Adams caught Nguyen, tackled him from behind and placed him in a choke hold on the ground. Nguyen quickly broke free and traded several punches with Adams before completely escaping and running away.
Adams returned to his apartment and called 911. Officers responded within minutes and Adams pointed them in the direction Nguyen had gone. As the officers approached an apartment complex, Nguyen saw one of them and fled on foot, refusing to stop despite the officer's instruction to do so.
As Nguyen tried to escape over a fence, the fence gave way and the officer was able to apprehend him. The officer and his partner arrested Nguyen after recovering marijuana, rolling papers and the outlet plug for a cell phone charger, all of which was later determined to have belonged to Adams, from Nguyen's pockets. Nguyen told the officers he was sorry and had been "just looking for food." He did not exhibit any injuries other than a few scrapes on his hands.
Adams was granted prosecutorial immunity for his testimony at trial.
Adams, who had followed the pursuit, identified Nguyen as the perpetrator of the theft from his apartment. An eyewitness to the scuffle, however, told the officers that the person she saw Adams fighting with was heavier, had a darker complexion and was wearing different clothes than Nguyen.
Nguyen was charged with first degree burglary and robbery. At trial, the defense did not present any evidence except a photograph of the area in the vicinity of Adams's apartment. Defense counsel argued to the jury that (1) the prosecution's evidence was insufficient to prove that Nguyen stole anything from Adam's apartment, with it being equally plausible that he simply picked up the marijuana and rolling papers that had been discarded by the thief, (2) he ran away when he saw the officers because he possessed the marijuana rather than because he was guilty of the theft from Adams's apartment, and (3) even if Nguyen had burglarized Adams's apartment, he was not guilty of robbery because he used force to get away from Adams, not to keep the stolen property.
Defense counsel also pointed out in closing argument that there was no instruction that robbery was a continuing offense. The court declined to re-open its instructions to the jury, but allowed the prosecutor to rebut the statement with an explanation that the jury could find the force or fear element of a robbery charge to be true if it concluded that Nguyen used force or fear against Adams at any point before he reached a point of temporary safety.
During deliberations, the jury sent a note to the court inquiring (1) whether the robbery charge required it to find that Nguyen "used force or fear to prevent the person from resisting him taking the property" and (2) whether Adams "need[ed] to know that Nguyen ha[d] the property on him during the altercation." The court responded "Yes" to the first question and "There is no requirement that Adams need[ed] to know" to the second one.
A half hour later, the jury convicted Nguyen of both counts. After waiving his right to a jury trial, Nguyen admitted allegations that he was on release on his own recognizance for identity theft and drug-related offenses at the time of the theft from Adams's apartment. The court sentenced Nguyen to four years and eight months in prison for the two criminal cases.
In January 2016 Nguyen was arrested and charged with possession of personal identifying information of 10 or more individuals with the intent to defraud and misdemeanor possession of drug paraphernalia. In early March 2016, he pled guilty to these offenses and was released on his own recognizance pending sentencing. A week later, he was arrested for the theft from Adams's apartment. The court ultimately sentenced Nguyen for both sets of offenses together.
Nguyen appeals.
DISCUSSION
1. Self-Defense and Excessive Force
Nguyen argues that the trial court erred in failing to instruct the jury, sua sponte, on self-defense and excessive force as defenses to the robbery charge. On appeal, we determine de novo whether the trial court had such an obligation to give those instructions. (See People v. Russell (2006) 144 Cal.App.4th 1415, 1424, disapproved on other grounds by People v. Covarrubias (2016) 1 Cal.5th 838, 874, fn. 14.)
A trial court in a criminal case has a duty to instruct, sua sponte, on general principles closely and openly connected with the facts of the case, including potential defenses. (People v. Breverman (1998) 19 Cal.4th 142, 154.) However, the duty to give sua sponte instructions on a particular defense arises only if (1) it appears that the defendant is relying on such a defense or (2) if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case. (Id. at p. 157; People v. Barton (1995) 12 Cal.4th 186, 197.)
The People respond that self-defense (and implicitly the related theory of excessive force used by a victim) are not defenses to a charge of robbery as a matter of law, a contention that does have precedential support. (People v. Costa (1963) 218 Cal.App.2d 310, 316; see generally People v. Gomez (2008) 43 Cal.4th 249, 264 [recognizing that a victim who sees his property being stolen may reasonably be expected to try to reclaim the property and that "[i]t is the conduct of the perpetrator who resorts to violence to further his theft, . . . not the decision of the victim to confront the perpetrator" that is relevant to the determination of whether a robbery occurred].) However, even if we assume that the case law establishes a general rule that may be subject to exceptions in certain circumstances, we nonetheless conclude that the trial court did not err in failing to give sua sponte instructions on those theories in this case.
See People v. Adams (2009) 176 Cal.App.4th 946, 953 [observing that " '[t]he right to resist excessive force . . . is an application of the law of self-defense' "].
See, e.g., People v. Randle (2005) 35 Cal.4th 987, 1002 [stating the principle that a victim of theft is entitled to use only reasonable force to retrieve property stolen from him], disapproved on another ground by People v. Chun (2009) 45 Cal.4th 1172, 1201. --------
Nguyen's primary defense at trial was that someone else was the perpetrator of the theft from Adams's apartment. This defense theory was entirely inconsistent with the notion that Nguyen acted in self-defense, or that Adams used excessive force in trying to recover the stolen items from him, as a defense to robbery and thus did not require the trial court to give the instructions. (People v. Breverman, supra, 19 Cal.4th at p. 157.)
Nguyen's alternative theory at trial, that he used force only to protect himself rather than to retain the stolen items, was not supported by evidence that required the trial court to instruct the jury on self-defense or excessive force. (See, generally, People v. Salas (2006) 37 Cal.4th 967, 982 [court must instruct on a defense where substantial evidence, if believed, would raise a reasonable doubt as to the defendant's guilt].) The evidence was unequivocal that (1) Adams only momentarily placed Nguyen in a chokehold before Nguyen was able to break free and (2) Nguyen did not suffer any injuries, other than minor scrapes on his hands, as a result of his encounter with Adams. More importantly, there was no evidence that Nguyen was gasping, rendered unable to breathe or otherwise at risk of great bodily injury or death as a result of the brief chokehold Adams placed on him. Thus, there was no evidentiary basis on which the jury could have inferred that the reason Nguyen fought with Adams was because he feared great bodily injury or death. (People v. Sedeno (1974) 10 Cal.3d 703, 718 [holding the trial court did not err in failing to give a self-defense instruction sua sponte absent evidence from which the jury could at least infer that the defendant acted in fear of great bodily injury or death at the hands of the victim] overruled on other grounds by People v. Breverman, supra, 19 Cal.4th at p. 873.)
" ' "Appellate insistence on sua sponte instructions [concerning defenses] which are inconsistent with defense trial theory or not clearly demanded by the evidence would hamper defense attorneys and put trial judges under pressure to glean legal theories and winnow the evidence for remotely tenable and sophistical instructions." ' " (People v. Barton, supra, 19 Cal.4th at p. 197.) Given Nguyen's theories of defense at trial and the absence of clear evidence establishing that he acted in self-defense or in response to excessive force by Adams rather than to get away with the stolen property still in his possession (as found by the jury), the trial court did not have a sua sponte obligation to instruct the jury on self-defense or excessive force. (Cf. People v. White (1980) 10 Cal.App.3d 161, 168-169 [holding the trial court erred in failing to sua sponte instruct on self-defense and excessive force as defenses to resisting arrest where the defendant testified that she bit the arresting officer after he put her in a choke hold that stopped her from breathing].)
Finally, even if the court had erred in failing to instruct the jury on self-defense and excessive force, such error would have been harmless. A central element of robbery is the use of force or fear to either gain or retain possession of stolen property. (Pen. Code, § 211; People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8.) In closing argument, defense counsel emphasized this element of the robbery charge, arguing that Nguyen used force to get away from Adams rather than to retain the stolen property. Moreover, during deliberations, the jury inquired whether the robbery charge required it to find that Nguyen "used force or fear to prevent [Adams] from resisting him taking the property" and, after the court clarified that it did, the jury found him guilty. In convicting Nguyen of the robbery count, the jury necessarily rejected his claim that he was acting in self-defense or in response to excessive force rather than to retain the stolen property still in his possession. Under these circumstances, it is not reasonably probable that the jury would have reached a different verdict if the instructions had been given. (People v. Breverman, supra, 19 Cal.4th at pp. 177-178.)
The trial court did not err in failing to instruct the jury on either self-defense or excessive force relating to the robbery charge.
2. Errors in the Abstract of Judgment
Nguyen points out, and the People agree, that the abstract of judgment (1) mis-identifies the statutory basis of count 1B (identity theft) as Penal Code section 530, subdivision (c)(3), rather than Penal Code section 530.5, subdivision (c)(3), and (2) mis-states his custody credits as 195 actual days, 224 local-conduct days and 224 total days, rather than the credits calculated by the trial court (195 actual days, 29 local-conduct days and 224 total days). Our review of the record confirms these errors and accordingly, we modify the judgment to correct them.
DISPOSITION
The judgment is modified to reflect that the statutory basis for count 1B was Penal Code section 530.5, subdivision (c)(3) and that Nguyen's custody credits were 195 actual days, 29 local-conduct days and 224 total days. As so modified, the judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment and deliver a certified copy thereof to the Department of Corrections and Rehabilitation.
HALLER, J. WE CONCUR: NARES, Acting P. J. AARON, J.