Opinion
G054772
05-18-2018
THE PEOPLE, Plaintiff and Respondent, v. DUYEN CHUONG NGUYEN, Defendant and Appellant.
James M. Crawford, 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 Christopher P. Beesley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16WF2158) OPINION Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed. James M. Crawford, 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 Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
A jury convicted Duyen Chuong Nguyen of assault with a deadly weapon (count 1), simple battery (count 2), and attempted petty theft (count 3). Nguyen received a suspended sentence on condition he serve 364 days in jail on count 1 and shorter concurrent sentences on counts 2 and 3. On appeal, he argues the evidence was insufficient to support the attempted petty theft conviction and the trial court erred by not staying execution of sentence on count 2 pursuant to Penal Code section 654 (further Code references are to the Penal Code). We conclude otherwise and affirm.
FACTS
Huy Le lives in a house on Jennrich Avenue in Garden Grove. A brick wall separates his backyard from a drainage channel that is about 20 feet wide. In Le's backyard, next to the wall, is a tree bearing an edible and expensive fruit called longan. People are known to walk up and down the drainage channel and steal longan fruit from Le's tree and from the tree of a neighbor who lives two houses down.
At about 10:00 a.m. on September 19, 2016, Le's wife awakened Le and told him that someone was picking fruit from the trees. Le went into his backyard, stood on a chair, and looked to his right over the brick wall. He saw Nguyen use a long wooden fruit-picking pole to take longan fruit from his neighbor's tree. After watching Nguyen pick fruit for about two minutes, Le hopped over the wall and approached him.
Le said to Nguyen, "This area is a no trespassing area. If you stay here . . . and pick fruit from here, that's against the law. . . . It's best for you to leave this area." Nguyen lowered the fruit-picking pole, which was as thick as Le's wrist, and thrust it hard into Le's arm. Le grabbed the pole. Nguyen dropped the pole, approached Le, and punched him several times in the chest.
Hector Leyva lives in a house on Morningside Drive in Garden Grove, on the opposite side of the drainage channel from Le. At about 10:00 a.m. on September 19, 2016, Leyva was working in his backyard. He looked across the drainage channel and saw a man (later identified as Nguyen) use a fruit-picking pole to take fruit from a tree in the backyard of a home, identified by Leyva at trial as located at the same address as Le's home. Leyva saw a man jump over the wall and approach Nguyen. Levya saw Nguyen attack the man who had jumped over the wall. The man who had jumped over the wall called out to Leyva to call the police or 911. Levya or his daughter called the police.
Police officers arrived and apprehended Nguyen in the drainage channel behind Le's home. Nguyen had a bag containing longan fruit. A photograph of the bag of fruit was taken and received into evidence as exhibit 6.
DISCUSSION
I. The Evidence Was Sufficient to Support
the Conviction for Larceny.
Nguyen was charged in count 3 with misdemeanor attempted theft by larceny in violation of sections 484, subdivision (a), 488, and 664, subdivision (b). The prosecution's theory at trial was that Nguyen had stolen fruit from Le's longan tree and/or from the longan tree at Le's neighbor's home. The trial court gave a unanimity instruction.
The appellate briefs in this matter refer to the second longan tree as being in Leyva's backyard. Of the two longan trees, one was in Le's backyard, and the other was in a neighbor's yard two houses down from Le along the drainage channel. This second tree was not in Leyva's yard. Leyva lived on the opposite side of the drainage channel from Le. Nguyen walked along, not across, the drainage channel to pick fruit. Leyva had an avocado tree, a tangerine tree, and a macadamia nut tree, but no longan tree. Leyva did not testify about his fruit being stolen but was an eyewitness to Nguyen taking fruit from trees across the drainage channel and to the confrontation between Nguyen and Le.
The court gave this unanimity instruction: "The defendant is charged with attempted petty theft on September 19, 2016, at either a tree behind Mr. Le's house or a tree two doors down. The People have presented evidence of more than one act to prove that the defendant committed the offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of those acts and you all agree on which act he committed."
Nguyen argues the evidence was insufficient to support the conviction on count 3 because there was no evidence of taking fruit from Le's property and there was no evidence of a nonconsensual taking of fruit from the property of Le's neighbor.
We can uphold a conviction on any factual theory that is supported by the evidence unless the entire record affirmatively demonstrates a reasonable probability the jury found the defendant guilty based solely on the unsupported theory. (People v. Perez (2005) 35 Cal.4th 1219, 1233; People v. Guiton (1993) 4 Cal.4th 1116, 1128.) Here, the evidence supported a conviction for theft based on taking fruit from the tree of Le's neighbor.
The prosecution was not required to present testimony of lack of consent. "Under the Penal Code of this state, it is not necessary to allege in the indictment or information that the property was taken against the will of the owner. There is nothing found in the definition of larceny to that effect. . . . 'But such consent is, at the common law, matter simply of defense, and the absence of it does not enter into a prima facie case. Hence non-consent is not averred in the indictment, and it need not be proved.'" (People v. Davis (1893) 97 Cal. 194, 195.)
In People v. Davis (1998) 19 Cal.4th 301, 305, the California Supreme confirmed that the crime of larceny by trespass "is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries the property away." Trespass does not require proof of the owner's lack of consent; instead, "taking personal property from the possession of another is always a trespass unless the owner consents to the taking freely and unconditionally or the taker has a legal right to take the property." (Ibid., italics added, fns. omitted; see People v. Tupunga (1999) 21 Cal.4th 935, 938 ["At common law, a claim of right was recognized as a defense to larceny because it was deemed to negate animus furundi, or intent to steal, of that offense"].)
Thus, the prosecution was not required to present evidence that Le's neighbor did not consent to letting Nguyen take fruit in order to meet its burden of proving a prima facie case of larceny by theft. Moreover, the evidence showed circumstantially that Le's neighbor did not consent. Nguyen was seen taking fruit from the neighbor's tree while he was outside the neighbor's property in an area marked no trespassing. When Le confronted Nguyen, he did not say or indicate he had consent to take fruit. By attacking Le, Nguyen demonstrated that he was acting without consent and that Le was correct in challenging Nguyen's right to take fruit.
II. The Trial Court Did Not Err by Not Staying
Execution of Sentence on Count 2.
The jury convicted Nguyen under count 1 of assault with a deadly weapon in violation of section 245, subdivision (a)(1) and under count 2 of simple battery in violation of section 242. The court sentenced Nguyen to 364 days in jail on count 1 and to a concurrent term of 90 days in jail on count 2.
Nguyen argues the trial court erred in failing to stay execution of sentence on count 2 pursuant to section 654. We find no error because Nguyen committed two physical acts constituting separate crimes.
"Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry." (People v. Corpening (2016) 2 Cal.5th 307, 311.) First we consider "if the different crimes were completed by a 'single physical act.'" (Ibid.) "[I]f we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single '"intent and objective"' or multiple intents and objectives." (Ibid.)
"Whether a defendant will be found to have committed a single physical act for purposes of section 654 depends on whether some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses." (People v. Corpening, supra, 2 Cal.5th at p. 313.) Here, Nguyen took the wooden fruit-picking pole and strongly thrust it into Le's arm. Nguyen let go of the pole, having completed the actus reus for assault with a deadly weapon. Nguyen then punched Le in the chest, completing the actus reus for simple battery. Nguyen therefore engaged in two separate physical acts.
Nguyen argues the two physical acts could not be punished separately because they had the same objective; that is, "to confront Le and evade Le's confrontation over the taking of fruit from the property." However, even if Nguyen had a single objective, "'multiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm.' [Citation.] Under section 654, a course of conduct divisible in time, though directed to one objective, may give rise to multiple convictions and multiple punishment 'where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.'" (People v. Lopez (2011) 198 Cal.App.4th 698, 717-718.)
After Nguyen struck Le with the fruit-picking pole, Le grabbed the pole, and Nguyen let go of it. Nguyen had the opportunity at that point to reflect before punching Le in the chest. After letting go of the pole, Nguyen could have left the scene. Instead, he aggravated the violation of public safety and created "a new risk of harm" (People v. Goode (2015) 243 Cal.App.4th 484, 493) by punching Le.
DISPOSITION
The judgment is affirmed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.