Opinion
H034947
11-08-2011
THE PEOPLE, Plaintiff and Respondent, v. HOANG TUONG NGUYEN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC509200)
Defendant Hoang Tuong Nguyen appeals a judgment entered after a jury trial during which he was convicted of aggravated sexual assault of a child, lewd or lascivious conduct with a child by force or fear, and oral copulation by force or fear. On appeal, defendant asserts he was denied effective assistance of counsel, because his trial attorney did not move to suppress his statements made to the investigating officer, and when the statements were admitted, failed to request redaction of those portions that referred to defendant's custody status. In addition, defendant argues the trial court erred when it denied his motion for substitution of counsel at his sentencing hearing.
STATEMENT OF THE CASE
This case arises from defendant's sexual molestation of his girlfriend's seven-year-old daughter.
In 2006, defendant was charged by information with one count of aggravated sexual assault of a child under 14 and 10 years younger than the defendant (Pen. Code, § 269); two counts of committing a lewd or lascivious act on a child by force or fear (§ 288, subd. (b)(1); and one count of oral copulation by force or fear (§ 288a, subd. (c)(2)).
All further statutory references are to the Penal Code.
Defendant was found guilty of all counts during a jury trial. In November 2006, the court sentenced defendant to a total of 21 years to life.
In February 2010, this court granted defendant's motion for relief from default, and defendant subsequently filed a notice of appeal.
DISCUSSION
Defendant asserts he was denied effective assistance of counsel, because his trial attorney did not move to suppress his statements to the investigating officer, and when the statements were admitted, fail to request a redaction of information that could lead the jury to conclude defendant was in prison for another felony conviction.
"To establish ineffective assistance of counsel, a defendant must demonstrate that (1) counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the petitioner. (Strickland v. Washington (1984) 466 U.S. 668, 687; In re Wilson (1992) 3 Cal.4th 945, 950.) 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' (Strickland, supra, 466 U.S. at p. 694.)" (In re Neely (1993) 6 Cal.4th 901, 908-909.)
"Judicial scrutiny of counsel's performance must be highly deferential. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." (Strickland v. Washington, supra, 466 U.S. at p. 689.) "Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." (Id. at p. 690; see Lockhart v. Fretwell (1993) 506 U.S. 364, 381.)
"A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Strickland v. Washington, supra, 466 U.S. at p. 690.)
Appellant bears a burden that is difficult to carry on direct appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436.) "[I]f the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsel's performance." (People v. Castillo (1997) 16 Cal.4th 1009, 1015.)
Failure to Move to Suppress the Confession
Here, the primary basis for defendant's ineffective assistance claim is that his counsel did not move to suppress his statement about the charges made to the investigating officer. Defendant asserts the statements were involuntary, and should not have been admitted at trial.
In this case, the voluntariness of the confession was not explicitly addressed below. Therefore, we apply de novo review, and "independently examine the record, but, to the extent the facts conflict, we accept the version favorable to the People if supported by substantial evidence. [Citation.]" (People v.Weaver (2001) 26 Cal.4th 876, 921.)
The circumstances of the statement in this case were that defendant was in custody for a driving under the influence conviction that occurred in 2005. San Jose Police Officers Tran and LaBarbera went to the prison where defendant was incarcerated to take his statement regarding the allegations of sexual abuse. The conversation lasted about an hour, and was in Vietnamese. Detective Tran translated and transcribed the interview. Prior to beginning the interview, Tran told defendant, "before we talk ok uh I want you to know if you don't want to talk to me you can get up and walk or you can say 'I don't want to talk anymore, let me leave'. . . . I came to ask permission to talk to you only, do you understand?" Defendant said, "[Y]es." Tran continued, and told defendant, "at anytime you don't want to talk to me just say, . . . 'hey, I want to leave.' if you tell me you want to leave then I will let them know." At the end of the interview Tran said, "if you didn't want to talk then you would have gotten up and walked away right?" Defendant said in response, "I think I wouldn't need to get up.. .anyone who does that then they're running away . . . ." At no point during the interview did defendant ask Tran to stop the interview, or ask to leave the interview room.
We review the totality of circumstances to determine whether a confession is voluntary. (People v. Williams (1997) 16 Cal.4th 635, 660.) Among the factors to be considered are " 'the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity' as well as 'the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.' [Citation.]" (Ibid.)
A confession is voluntary if the suspect's decision to speak is entirely "self-motivated" because he freely and voluntarily chooses to speak without any form of compulsion or promise of reward. (People v. Thompson (1980) 27 Cal.3d 303, 327-328.) Lies told by the police to a suspect under questioning do not render the confession involuntary per se. The court must look to see whether the deception is reasonably likely to procure an untrue confession. (People v. Farnam (2002) 28 Cal.4th 107, 182.) Similarly, police trickery, by itself, does not render a confession involuntary (People v. Thompson (1990) 50 Cal.3d 134, 167), because subterfuge is not necessarily coercive. (People v. Felix (1977) 72 Cal.App.3d 879, 885-886.)
A confession is involuntary if it is obtained by an express or implied promise of leniency or advantage to the accused, and if it is a motivating cause of the confession. (People v Ray (1996) 13 Cal.4th 313, 339.) If the defendant is led to believe he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, the prosecution, or the court, in consideration of making the statement, even if truthful, such motivation is deemed to render the statement involuntary. (People v. Holloway (2004) 33 Cal.4th 96, 115.) However, mere advice or exhortation that it would be better to tell the truth, when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary when the benefit pointed out is merely that which flows naturally from a truthful statement. (Ibid.)
Defendant asserts Tran's conduct during the interview affected the voluntariness of defendant's statements. Specifically, defendant points to Tran's implicit promises throughout the interview that if defendant told him what happened, the police would go back and clarify the matter with the victim, and there might not be any charges. For example, during the interview, Tran told defendant, "now that you've told me I understand . . . now I'll go back and talk . . . I'll have to . . . we have to . . . sometime with a kid I have to sit down and talk . . . you see . . . now I know the truth about what happened. . .I need to know everything so I can say . . . ."
In addition, defendant cites Tran's lie to him during the interview about the reporting of the crime, and the existence of DNA evidence. Specifically, Tran told defendant that the victim reported the abuse to a teacher in 1996, and there was DNA evidence that proved that someone had touched her, when in reality, the victim reported the incident in 2005, and there was no DNA evidence. Defendant asserts Tran's lie about the reporting and DNA evidence, combined with the promise to clear things up, made defendant's statements during the interview involuntary.
Tran's lie about the reporting and DNA evidence while a regrettable but frequent practice of law enforcement, was not unconstitutional. So long as the police officer's misrepresentations or omissions are not of a kind likely to produce a false confession, confessions prompted by deception are admissible in evidence. (People v. Jones (1998) 17 Cal.4th 279, 299.) In addition, Tran's implicit promise to talk to the victim and clarify things was not coercive, nor did it amount to an improper promise of leniency. (See People v. Ray, supra, 13 Cal.4th 313, 340 ["investigating officers are not precluded from discussing any 'advantage' . . . in the event the accused speaks truthfully about the crime"].)
Based on our review of the record, we find defendant's confession was voluntary and was not the result of police coercion such that his will was " ' "overbourne " by the circumstances.' " (People v. Guerra (2006) 37 Cal.4th 1067, 1093.) We find the crucial element of coercive police conduct to be missing in this case. (Ibid. [coercive police conduct is a " 'necessary predicate' " to a finding that a confession was involuntary.)
Accordingly, since defendant's confession was voluntary, it would have been futile for defense counsel to object to its admission on this ground. Therefore, we reject defendant's claim of ineffective assistance of counsel for failure to move to suppress his statement.
Failure to Request Redaction of Defendant's Statement
Defendant asserts his trial counsel was ineffective for failing to request redaction of the portions of his confession that implicitly referred to his custody status. Defendant's statement was taken in state prison while defendant was serving a sentence for driving under the influence.
Prior to trial, defense counsel moved in limine to "exclude any reference to location of which the defendant's statement was taken by law enforcement." The court granted this request.
During trial, Tran read the transcript of the interview with defendant to the jury. The transcript had portions that were blocked however, some indirect references to defendant's custody status remained. Defendant asserts his counsel's failure to object to these references was ineffective, and was a violation of his due process rights under the Fourteenth Amendment. Specifically, defendant argues the references to him being in custody would lead a jury to conclude that he had suffered another felony conviction, and was serving a sentence for that conviction at the time of the interview.
The references in the transcript about which defendant complains include comments such as Tran telling him, "[I]f you tell me you want to leave then I will let them know," "[H]ave they let you go eat lunch yet?" and "Hey, you know, there are a lot of Vietnamese in here." Tran also asked defendant, "[W]hen you get out . . . in a few days when you get out, you intend to continue contact with your daughter?"
The comments defendant cites in support of his argument are vague, and would not necessarily lead a jury to conclude defendant was in custody serving a sentence on another felony. All of the comments, while possibly referring to defendant being in custody, do not specifically imply that he is serving a sentence on another felony conviction. They could just as easily be interpreted as defendant being in custody on the charges for his case, or serving a sentence on a misdemeanor. Moreover, the comments could also be interpreted as references to defendant being treated in a hospital, or being held by the INS. Because the implicit comments are subject to multiple reasonable interpretations, their inclusion in the trial evidence was not prejudicial.
Defendant's claim of ineffective assistance cannot be sustained because he cannot demonstrate prejudice from the admission of the comments from the interview. (See People v. Hester (2000) 22 Cal.4th 290, 297 [where defendant cannot demonstrate prejudice, court need not determine if counsel was incompetent].)
Trial Court's Denial of Defendant's Request to Substitute Counsel
Defendant asserts the trial court abused its discretion by denying his motion to continue sentencing proceeding in order to substitute a new attorney. He claims that, as a result of the denial of the continuance, he was denied his Sixth Amendment right to counsel at sentencing.
A party must establish good cause for a continuance. (People v. Mickey (1991) 54 Cal.3d 612, 660.) The trial court has discretion to determine whether to grant or deny a motion for continuance, and its ruling will not be disturbed unless the defendant can establish that it exceeds the bounds of reason, all circumstances being considered. (People v. Sakarias (2000) 22 Cal.4th 596, 646.) In addition, the right of a nonindigent defendant to discharge retained counsel, with or without cause is well established, but it is not absolute. A motion to discharge may be denied if discharge will result in significant prejudice or if it is untimely, "i.e., if it will result in 'disruption of the orderly process of justice.' [Citations.]" (People v. Ortiz (1990) 51 Cal.3d 975, 983.)
Defendant's request for a continuance for substitution of counsel was on the fifth date set for sentencing. Prior to November 30, 2006, the court granted defendant's requests to continue sentencing over the prosecutor's objections on August 17, September 15, October 26, and November 9. These continuances were granted because either defendant's attorney, Jamie Harmon, or another attorney who appeared on her behalf was not ready to proceed with sentencing. At the date of the last continuance, the court expressed frustration with the delays, stating that Harmon had "lost almost all credibility." The court also stated, "[S]omeone in [Harmon's] office is going to need to be here November 30th at nine o'clock for sentencing. [¶] . . . [¶] There is simply not going to be any delays. [¶] . . . [¶] I just want to make it real clear that someone needs to be here from [Harmon's] office on November 30th, nine o'clock prepared to proceed with sentencing, okay?"
On November 30, 2006, four months after defendant was convicted at a jury trial, Russell Miller appeared at defendant's sentencing hearing, and moved to substitute in as defendant's counsel. When the court asked Miller if he was ready to proceed with sentencing, Miller told the court he was not. The court denied the request for substitution, stating, "I think the court made it very clear today was going to be the day we were going to go forward . . . the victims in this case want some closure." The court continued, "I also think, based on the history of this case, it will disrupt the proceedings. The prosecution has continually objected to delays and continuances in this matter. Primarily, on behalf [of] the victim, for those reasons, I'm going to deny [defendant's] request . . . ." The court reconvened the hearing following a recess, and sentenced defendant with his trial attorney, Jamie Harmon, present.
Based on the procedural history of this case, the court did not exceed the bounds of reason in refusing defendant's request for a continuance to substitute counsel. (People v. Sakarias, supra, 22 Cal.4th at p. 646.) The sentencing in this case had already been delayed four months from the date of conviction, and the court's conclusion that any further delay would disrupt the proceeds was reasonable. We find no abuse of discretion.
Cumulative Error
Defendant argues that the cumulative effect of the above discussed errors deprived of him of his constitutional right to a fair trial, and therefore the jury's finding must be reversed.
The California Supreme Court has instructed that "a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844.) In the present case, we have determined that none of the above claimed actions on the part of the court were prejudicial errors. Moreover, the cumulative effect of the claimed errors is insufficient to rise to the level of reversible and prejudicial error. Therefore, we must reject defendant's contention of cumulative error.
DISPOSITION
The judgment is affirmed.
RUSHING, P.J. WE CONCUR:
PREMO, J.
ELIA, J.