Opinion
B161817.
11-3-2003
THE PEOPLE, Plaintiff and Respondent, v. TROUNGHAI THAT NGUYEN, Defendant and Appellant.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney, and Corey J. Robins, Deputy Attorney General, for Plaintiff and Respondent.
Appellant Trounghai Nguyen was convicted of kidnapping and sexual battery after he forced his ex-girlfriend at gunpoint into his car, drove her to a motel and other places, touched her genitals three times, and attempted to insert his penis in her vagina. We find no merit to his contentions on appeal that (1) the record lacks substantial evidence to support his convictions and (2) the trial court should have instructed the jury on mistake of fact. We shall affirm the judgment.
FACTUAL BACKGROUND
Nguyen and the victim, his ex-girlfriend, dated for 12 to 18 months. The victim attempted to "part ways" with Nguyen on multiple occasions, and Nguyen warned her that "wherever you are, 50 states, I will look for you." Even though the victim had already told Nguyen that she wanted to "part ways" with him, when she moved from Illinois to California, Nguyen drove her.
On August 22, 2001, Nguyen entered the victims workplace, L & T Nails, brandishing a gun. Nguyen ordered everyone to stay still. He pulled the trigger and discharged the gun. Speaking to the victim, Nguyen said "I come here for you." The victim ran into the bathroom and shut the door. Nguyen followed and tried to open the bathroom door. Nguyen told the victim that she could not "hide anymore" and that she had "to come out."
At the request of her employer, the victim opened the bathroom door. Nguyen grabbed her hand and, holding the gun, allowed her to pick up her belongings and led her outside. Although the victim tried to pull away, she was unable to free herself because Nguyen was stronger than she. Nguyen pushed the victim into his car and shut the door after her. Fred Dew, a witness, saw Nguyen pull the victim toward the car and Dew noticed that Nguyen was holding a gun. Dew wondered why the victim did not jump out and run when Nguyen walked around the car to open the door on the driver side, but the victim explained that she was scared because Nguyen still had the gun.
Continuing to hold the gun in one hand, Nguyen drove the victim to a motel, where he stopped and checked into a room. Nguyen carried the gun underneath his shirt. When the victim told Nguyen that the gun scared her, Nguyen wrapped the gun in a t-shirt and put it in the trunk of his car.
Nguyen and the victim left the motel to buy food. The victim told Nguyen she was hungry because she thought that she may have an opportunity to seek help at a restaurant. The victim was unable to obtain assistance because Nguyen "was so close to [her] at all times."
After picking up food, Nguyen and the victim returned to the motel. Nguyen asked the victim to take off her clothes, and she complied because she was scared of Nguyen. Nguyen took off his clothes and then touched the victims breasts and her vagina. Nguyen stopped touching her after the victim told Nguyen that she did not "like it."
Later that evening, Nguyen and the victim left the motel. Nguyen told the victim he wanted to hide the gun so the police could not find it. Nguyen did not hold the victim, but she was afraid to flee because Nguyen was close to her. Nguyen stopped at a market. Nguyen told the victim to stand outside, and she complied. She waited about seven minutes, and did not ask anyone in the market for help. When Nguyen returned, he still had his gun.
Nguyen then drove the victim to a gas station. Nguyen stopped and walked into an alley, where he discarded the gun. Nguyen then drove the victim to a friends house where they watched television, including a report that featured them. According to the television report, the victim had been kidnapped. In response to this report, Nguyen said that either he would escape, he would shoot himself, or "both of us will be dead . . . ." The last statement made the victim tremble.
In a bedroom in the friends house, Nguyen took off the victims clothes. Nguyen said that he wanted to make love, and the victim responded that she "would not agree to it." Nguyen touched her entire body. The victim pushed him away and Nguyen stopped touching her.
Nguyen and the victim stayed in the friends house overnight. At some point, Nguyen left the house for approximately 25 minutes. The victim did not seek assistance during that time.
In the morning, the victim told Nguyen she wanted to go home and Nguyen agreed to call a friend to pick her up. Nguyen told the victim he wanted to make love, and the victim said she "would not agree to it." Nguyen took off her clothes and his clothes. Nguyen pinned the victim down, holding her shoulders. Nguyen tried to put his penis inside her vagina. The victim pushed him away.
Later that morning, Nguyens friend drove Nguyen and the victim to a bus station. The victim entered a cab and left Nguyen.
PROCEDURAL BACKGROUND
Nguyen was charged with kidnapping in violation of Penal Code section 207, subdivision (a). A personal discharge enhancement under section 12022.53 was alleged. It also was alleged that Nguyen discharged a firearm with gross negligence in violation of section 246.3. Finally, Nguyen was charged with one count of sexual battery in violation of section 243.4, subdivision (a). Nguyen pled not guilty and was tried by jury.
All further nondesignated statutory citations are to this code.
Nguyen did not testify or present any defense. During closing argument, defense counsel argued that Nguyen never pointed the gun at anyone in L.A. Nails. Defense counsel argued that the victim had opportunities to leave Nguyen. Counsel emphasized Dews testimony that he wondered why the victim did not flee. Counsel also questioned the victims failure to tell the friend that she was kidnapped even when Nguyen left the house. With respect to the sexual battery count, counsel argued that the moment Nguyen was told to stop, he did.
The jury found Nguyen guilty of all charges. After the jurors returned their verdict, one juror gave the judge a note, which provided as follows: "While we have found the Defendant guilty of all 3 charges, I do believe the testimony and evidence presented demonstrates that the victim . . . contributed, by her actions and behavior, to Hois (Defendants) behavior. [¶] . . . [¶] During the commission of the crimes the Defendant committed, the victims actions may have further contributed to prolonging the situation by: 1) Not saying `No during their intimate sexual times, earlier and before her clothes were off. 2) Not escaping [sic] or asking for help during the numerous opportunities she had (possibly contributing to the Defendants thinking by sending a mixed-message as to whether she did or did not want to be there) — especially at their mutual acquaintances house, when the Defendant left for 25 mins."
Another juror wrote the judge a note stating "On sentencing for the sexual battery charge please consider the fact that when the victim said no, he stopped."
The court found the absence of any prior record to be a mitigating factor and found that the mitigation outweighed the aggravation. The court sentenced Nguyen to three years on the kidnapping charge and added 20 years for the personal discharge enhancement. The remaining sentences were ordered to run concurrently. Nguyen timely appealed.
DISCUSSION
We discuss separately the kidnapping and sexual battery convictions. With respect to each, Nguyen argues the record lacks substantial evidence and that the trial court should have instructed the jury on mistake of fact.
I. Kidnapping
A. Sufficiency of the Evidence
"In assessing a sufficiency-of-evidence argument on appeal, we review the entire record in the light most favorable to the prevailing party to determine whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Wader (1993) 5 Cal.4th 610, 640.) Contrary to Nguyens contentions, there is overwhelming support for the kidnapping conviction.
Section 207, subdivision (a) defines simple kidnapping as follows: "Every person who forcibly, or by other means of instilling fear, steals, or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county is guilty of kidnapping." As the statute states, force or fear is an element of the crime. (People v. Hill (2000) 23 Cal.4th 853, 856.)
A rationale trier of fact could have concluded that Nguyen forcibly took the victim from one place in the county to another place when he entered her workplace, holding a gun, discharged the gun, ordered her to come out of the bathroom, pushed her into his car, and drove off while still holding the gun. (See People v. Hill, supra, 23 Cal.4th at p. 857 [accosting victims and forcing them to accompany defendant inside a car constituted both force and fear].)
Nguyen ignores all of the conduct we have just summarized and instead argues that the victim had an opportunity to seek assistance such as when the two were at the market, the gas station, or the friends house. Apparently, Nguyens argument is that evidence the victim failed to obtain assistance is evidence that she was not forced to accompany Nguyen. According to Nguyen, "the evidence if anything reflects that [the victims] presence with appellant was anything other than compelled." Nguyen made the same argument to the jury and the jury rejected it. As we have explained, the jurys verdict is supported by overwhelming evidence.
Finally, Nguyen appears to argue that, even if he initially forced the victim to accompany him, at some point he no longer compelled her to follow him. This argument may be relevant to a determination of the duration of the kidnapping, but does not show that the record lacks substantial evidence to support each element of kidnapping. For purposes of analyzing the sufficiency of the evidence, we are required to determine if a reasonable juror could have concluded a kidnapping occurred, i.e. whether Nguyen moved the victim from one part of the county to another part "forcibly, or by other means of instilling fear. . . ." (§ 207, subd. (a).) We are not required to assess the evidence with respect to the duration of the kidnapping.
B. Alleged Instructional Error
Nguyen requested and the trial court refused to instruct the jury with the following instruction based on People v. Mayberry (1975) 15 Cal.3d 143, 155 (a case we discuss in more detail in section II):
It is a defense to the crime of kidnapping that a defendant lacked general criminal intent. There is no general criminal intent if a defendant entertained a reasonable good faith belief that the person alleged to have been kidnaped [sic] voluntarily consented to accompany the defendant and to the movement involved in the purported kidnaping. [Sic.] If from all of the evidence you have a reasonable doubt that the defendant had general criminal intent at or during the time of the movement, you must find [him][her] not guilty of kidnaping. [Sic.] (See CALJIC No. 9.58.)
According to Nguyen, the instruction was required because "there were multiple instances where [the victim] made no attempt whatsoever to get away from appellant. [The victim] did not testify that she asked appellant to let her go and he refused; [the victim] did not testify to any force or fear or threats of force or fear used by appellant to keep her with him. In fact, when [the victim] asked appellant to get rid of the gun, he did so. . . . In fact, appellant left [the victim] alone on a number of occasions, and [the victim] took no action to leave or obtain help."
The relevant question is whether there was evidence of Nguyens reasonable and good faith believe that the victim agreed to accompany him, not whether the victim had an opportunity to flee. The evidence shows that Nguyen did not believe the victim consented to accompany him and that even if he had entertained such belief it would not have been reasonable under the circumstances. First, Nguyens statement to the victim that she had to stop hiding and come out of the bathroom is indicative of his subjective belief that she was trying to stay away from him. That belief is inconsistent with the claim that the victim "voluntarily consented to accompany the defendant and to the movement involved. . . ."
Even if we assume for the purposes of argument Nguyen subjectively believed the victim voluntarily chose to accompany him that belief was not reasonable. The record shows that the victim accompanied Nguyen only after he discharged a firearm in her workplace, dragged her out of her workplace, and forced her into his car at gunpoint. The trial court correctly refused to give the requested instruction.
II. Sexual Battery
A. Sufficiency of the Evidence
Nguyen argues the record lacks substantial evidence to support the sexual battery conviction under section 243.4. Subdivision (a) of that statute provides: "Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery." (Emphasis added.) "`[U]nlawfully restrained as it is used in the sexual battery statute . . . can be viewed as distinguishing the nonsexual physical element of sexual battery from the more wanton `force, violence, or fear element of rape. (§ 261, subd. (2).)" (People v. Pahl (1991) 226 Cal.App.3d 1651, 1661 (footnotes omitted)].) "At least the term `unlawfully restrained in section 243.4 means that something more is required than the mere exertion of physical effort necessary to commit the prohibited sexual act." (Ibid.)
Nguyen argues that there was no evidence the victim was unlawfully restrained. Nguyen explains that the victim "felt no true threat or restraint for each time she asserted her right to say no it was honored. . . . [B]y [the victims] own admission, appellant made no threats each time she told him no."
Nguyens statement is factually incorrect. Notwithstanding the victims clear assertion that she did not want to make love, Nguyen nevertheless took off her clothes and touched her. On one occasion, Nguyen pinned the victim down and attempted to insert his penis in her vagina and stopped only when she pushed him away. Nguyen also threatened the victim, initially with the gun and later by telling her that it was possible "both of us will be dead." Contrary to Nguyens statement, there is ample evidence of unlawful restraint.
B. Alleged Instructional Error
Nguyen did not request and the trial court was not required to sua sponte give an instruction that Nguyen reasonably and in good faith believed that the victim consented to Nguyens touching.
In People v. Mayberry, supra, 15 Cal.3d 143, 155, a case relied upon by Nguyen, the court held that "[i]f a defendant entertains a reasonable and bona fide belief that a prosecutrix voluntarily consented to accompany him and to engage in sexual intercourse, it is apparent he does not possess the wrongful intent that is a prerequisite . . . to a conviction of either kidnapping . . . or rape by means of force or threat . . . ." Mayberry is based on the notion that under section 26, reasonable mistake of fact regarding consent is incompatible with the existence of wrongful intent. (Id. at pp. 154-155.)
The Supreme Court affirmed Mayberry in People v. Williams (1992) 4 Cal.4th 354, 361) explaining that a Mayberry defense has both an objective and subjective component. "[A] defendant must adduce evidence of the victims equivocal conduct on the basis of which he erroneously believed there was consent. [¶] In addition, the defendant must satisfy the objective component, which asks whether the defendants mistake regarding consent was reasonable under the circumstances." (Id. at p. 361.) "Thus, regardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction." (Ibid.)
Here there was no evidence of equivocal conduct warranting a Mayberry instruction. The only "evidence" Nguyen cites is his statement that "when she asked him to stop his sexual advances, he complied . . . ." While the characterization is not entirely accurate, even if we assume it to be true, it shows Nguyens mental state after the touching. What is relevant is whether Nguyen subjectively believed that the victim consented prior to the touching. The evidence prior to the touching shows that when Nguyen asked the victim to make love, she refused.
Nguyen emphasizes the jurors notes in which the jurors underscore the fact that Nguyen stopped after the touching. As the Attorney General states, evidence that Nguyen stopped short of rape is not evidence that no sexual battery occurred. Nor is the jurors description of the victims passivity evidence of consent. (Cf. § 261.6 [for purposes of rape consent is defined as "positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved."].) Finally, one juror points to "mixed-messages as to whether she did or did not want to be there," but with respect to the sexual battery count, the issue is whether Nguyen believed the victim "consented to . . . [the touching], not whether she consented to spend time with him." (People v. Williams, supra, 4 Cal.4th at p. 363.)
Like the parties, we have assumed for purposes of argument that the Mayberry instruction applies to sexual battery just as it applies to rape. Although the mental state for sexual battery is not identical to the mental state required for rape, Appellants implicit claim that consent would negate the element of unlawful restraint just as it would negate the element of force in a rape case is persuasive.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, J. BOLAND, J.