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People v. Thanh

California Court of Appeals, Fourth District, Second Division
Sep 11, 2008
No. E043188 (Cal. Ct. App. Sep. 11, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County, Super. Ct. No. INF49009, Harold W. Hopp, Judge.

Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.


HOLLENHORST, J.

Following a jury trial, defendant Tommy Thanh was convicted of first degree murder (Pen. Code, § 187, subd. (a)) with a true finding of the special circumstance allegation that he committed the murder during the commission of a robbery (§ 190.2, subd. (a)(17)(A)). The trial court sentenced defendant to life in prison without the possibility of parole. He appeals, contending (1) the trial court erred in denying his motion to suppress his statements; (2) the trial court erred in admitting his telephone conversation with his girlfriend; (3) the trial court erred in failing to instruct on lesser offenses of manslaughter; (4) the special circumstance robbery instruction was defective; (5) the trial court erred in instructing the jury with Judicial Council of California Criminal Jury Instructions, CALCRIM No. 376; and (6) imposition of the parole restitution fine was improper.

All further statutory references are to the Penal Code unless otherwise indicated.

I. PROCEDURAL BACKGROUND AND FACTS

Tan Nguyen (Tan) and his wife, Kelly Phung Ngo (Victim), lived in an upstairs apartment on Washington Street in Bermuda Dunes. Kevin Truong Thanh (Kevin) and his brother, defendant, lived with Tan and Victim. The brothers shared a bedroom and bath, and the married couple shared a bedroom and bath. Tan and Kevin worked at a local casino.

The couple married on April 26, 2003.

Defendant moved in with Kevin after his parents kicked him out of their home.

Tan had a safe in the bedroom closet where he kept jewelry, money, keys, two of his wife’s rings, and over $18,000 in cash. He and Victim were the only two people with the combination to the safe.

Victim and Tan would argue because he would go out with another friend, Chris Hong Ho, Kevin, and defendant. About one month before the incident, Victim and defendant had had an argument. Kevin spoke to defendant about it. Also, Tan spoke to Victim, telling her not to engage in confrontations with defendant. Victim did not have problems with anyone else.

Victim typically went to bed around 11:30 p.m. She would lock the front door to the apartment and her bedroom door. Victim was 4 feet 11 inches tall and weighed 93 pounds. On the night of November 14, 2004, both Tan and Kevin were gone from the apartment by 8:00 p.m. Tan last spoke to Victim around 11:30 p.m. Defendant had been gone for two or three days. Around 1:30 a.m. on November 15, Tan was working at a blackjack table when defendant appeared and told him the apartment had been robbed and Victim had been injured. After Tan received permission to leave, he went with defendant to Victim’s car, where he saw her in the front seat. She was not moving.

They drove to the hospital. Tan wanted to call the police, but defendant said that he would do it. Victim was not responsive and appeared to be dead. After examining Victim, Dr. C. L. McArthur declared her dead.

An autopsy later showed that Victim had bruises and scrapes over her head, back, neck, and arms. There was a wound on Victim’s hand between her thumb and index finger which was deeper than it was wide, made from a relatively sharp object, not necessarily a knife. The cause of death was drowning.

Around 6:45 a.m., Officer Thomas Lee arrived at the hospital to contact Tan and defendant. Officer Lee asked Tan and defendant to ride with him voluntarily to the station, and they agreed to do so. The two were interviewed separately—first Tan, and then defendant.

The interview with defendant began at approximately 10:00 a.m. and lasted until after 5:00 p.m. The entire interview was recorded on videotape. Detective Thomas Brewster summarized the first portion of the interview. Defendant had spent several days in Los Angeles with friends. He returned to the Bermuda Dunes apartment around 1:00 a.m. on November 15 and noticed that someone had broken into the apartment. He found Victim face down in the bathtub. He took Victim out of the bathtub, put his jacket over her, and took her to the casino, where he picked up Tan and then went to the hospital. Defendant admitted having an argument with Victim “several months ago,” which had upset him.

After two hours of interviewing defendant, the detective asked to collect defendant’s clothing. Defendant voluntarily gave his clothing to the sheriff’s department. An inventory of the property collected revealed a large bundle of cash ($10,000 from the left pocket and $8,432 from the right pocket of defendant’s shorts) and two diamond rings. Detective Brewster was informed of this discovery. The detective then advised defendant of his right against self-incrimination under the Fifth Amendment to the United States Constitution. Defendant continued to talk to the detective without changing his story. However, he explained that he was in possession of the money and rings because he had picked them up off the floor to “get [them] away from the house.” They talked for about another hour, until defendant requested and was permitted to call his girlfriend. During the call, defendant told his pregnant girlfriend that he was sorry and that Victim was “gone as in dead.” Defendant told her, “I’ll be gone forever,” and “I’m not coming back.” He stated, “Whatever it is I’ve done I have to take responsibility and I have to do my time.” After the telephone call, defendant’s story changed.

II. MOTION TO SUPPRESS DEFENDANT’S STATEMENT

Defendant contends the motion to suppress his statements should have been granted by the trial court because his confession was involuntary and in violation of his constitutional rights.

A. Preliminary Background Facts

In limine, the prosecution moved to introduce defendant’s videotaped statements made during the police interview. The defense moved to suppress the statements on the grounds defendant had not knowingly and intelligently waived his Miranda rights. Defendant specifically challenged the conduct of the detective in questioning him for several hours, requesting his clothing for trace evidence because he was the last person with Victim, advising him of his rights an hour later, and immediately questioning him without obtaining an express waiver. The defense conceded an express waiver of rights is not required but argued the record did not support that defendant comprehended his rights to the point he could intelligently waive them.

Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

At the hearing on the motion to suppress, Detective Brewster testified. Defendant voluntarily went to the sheriff’s department for an interview, which commenced sometime around 10:00 a.m. on November 15, 2004. The detective told defendant that he was free to leave at any time. Defendant indicated that he understood. Defendant was alert and did not have any trouble communicating with the detective during the interview. The detective informed defendant of the nature of the investigation, namely, that it was a homicide investigation. Defendant described what he had found when he arrived at the apartment. When the detective asked to collect defendant’s clothing, defendant was told that he could refuse. Defendant stated that he understood and agreed to provide his clothing. After the money and jewelry were found in defendant’s clothing, he was informed that he was no longer free to go.

Defendant was advised of his rights, and he indicated that he understood. Detective Brewster commenced questioning, and defendant responded for another hour and a half or two hours. Defendant continued to maintain his initial version of the event. He was allowed to use the telephone to call his girlfriend. After the call, defendant’s statements changed.

“INVESTIGATOR BREWSTER: You all right? Okay. Before I get going with anything else, I got to tell you that you have the right to remain silent, okay.

On cross-examination, Detective Brewster stated that up to the point when the money and jewelry were found in defendant’s clothing, he was free to go. When the detective was asked why he did not ask for an express waiver after advising defendant of his rights, the detective responded that he had been trained not to ask that question because it is not a requirement of Miranda law.

The trial court viewed a substantial portion of defendant’s videotaped statements. It found there was no custodial interrogation until defendant’s clothing was taken. After that, defendant was not free to go. The court concluded any interrogation which took place from the time defendant’s clothing was taken until he was advised of his rights was inadmissible; however, once defendant was Mirandized, the videotape supported the conclusion that defendant understood his rights and impliedly waived them. Thus, the court found that defendant’s statements were admissible. As for the money and jewelry, the court found that defendant validly consented to a search of his clothing.

B. Standard of Review

On review, “[a]n appellate court applies the independent or de novo standard of review, which by its nature is nondeferential, to a trial court’s granting or denial of a motion to suppress a statement under Miranda insofar as the trial court’s underlying decision entails a measurement of the facts against the law. [Citations.] As for each of the subordinate determinations, it employs the test appropriate thereto. That is to say, it examines independently the resolution of a pure question of law; it scrutinizes for substantial evidence the resolution of a pure question of fact; it examines independently the resolution of a mixed question of law and fact that is predominantly legal; and it scrutinizes for substantial evidence the resolution of a mixed question of law and fact that is predominantly factual. [Citation.]” (People v. Waidla (2000) 22 Cal.4th 690, 730.)

C. Miranda Rights

Once a defendant has been advised of his Miranda rights, if he “in any manner and at any stage of the process” indicates that he wishes to invoke those rights, his request must be “scrupulously honored.” (Miranda, supra, 384 U.S. at pp. 444-445, 473-474, 479.) A defendant may invoke his Miranda rights by any words or conduct which reasonably reflects a present unwillingness to discuss the case. (People v. Scaffidi (1992) 11 Cal.App.4th 145, 152-153.)

A waiver of Miranda rights need not be express. Rather, “in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.” (North Carolina v. Butler (1979) 441 U.S. 369, 373, fn. omitted.) Therefore, “the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver,” may support a conclusion that he has waived his Miranda rights. (North Carolina v. Butler, supra, at p. 373.) Whether the defendant’s conduct amounts to an implied waiver “must be determined on ‘the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ [Citations.]” (Id. at pp. 374-375.)

Defendant claims there was no waiver, implied or otherwise, of his Miranda rights. He notes that the advisement in this case “followed over an hour of questioning, there was a failure to warn and further questioning.” He contends the detective’s conduct “is recognized as likely to defeat even an explicit waiver.” Specifically, he points out that the detective “was actually trained to not seek a waiver[,]” and defendant argues that “such training is clearly to avoid giving the suspect a clear chance to insist upon his rights.” Moreover, in his opening brief, defendant argues (1) he “had no characteristic or background fact that indicated he would know that he had to interrupt in order to assert his rights”; (2) “he had had little sleep and no particular maturity beyond his eighteen years”; (3) he “had no special educational attributes”; (4) he “had already undergone a lengthy interrogation”; (5) “he was in the basement interrogation room of the stationhouse”; (6) “he was left both in the lobby and the room for extended periods of time”; and (7) “[h]is clothing was taken from him.” Given all of the above, defendant maintains that his response to the advisement of his rights was merely an “acknowledgment only of what was said.”

In response, the People contend there is no evidence that the detective pressured defendant in any way. Initially, defendant freely answered the detective’s questions, portraying himself as an innocent bystander who simply discovered Victim’s body in the apartment that had been robbed. Defendant freely relinquished his clothing for inspection. After the money and jewelry were found in defendant’s clothing, he was advised of his rights. For another hour or hour and a half, defendant continued with the same story but explained why he was in possession of the money and jewelry. Defendant asked and was allowed to call his girlfriend. After the phone call, defendant confessed. The People note: (1) defendant was alert and responsive during the interview (People v. Anderson (1990) 52 Cal.3d 453, 469-470 [murder suspect, awake for 30 hours, validly waived his rights]); (2) there was no indication that defendant was under the influence of any controlled substance that could have clouded his judgment; and (3) defendant acknowledged his prior offenses for home invasion and auto theft. Thus, the People argue that the record supports the trial court’s finding that defendant waived his Miranda rights.

In reviewing alleged Miranda violations, we must accept a trial court’s resolution of disputed facts and inferences if they are supported by substantial evidence. Still, we independently determine whether the facts found by the trial court show that the challenged statements were unlawfully obtained. (People v. Stansbury (1995) 9 Cal.4th 824, 831.) Here, the circumstances surrounding defendant’s statements to Detective Brewster are undisputed. Based on the totality of the circumstances, we independently find that defendant’s statements at the police station were voluntary. In the absence of any evidence that defendant did anything to indicate he was not willing to continue talking, we conclude that by continuing to talk, he impliedly waived his Miranda rights.

III. DEFENDANT’S EXPECTATION OF PRIVACY REGARDING HIS TELEPHONE CONVERSATION WITH HIS GIRLFRIEND

Defendant contends the trial court erred in admitting the recorded telephone conversations he had with his girlfriend during a break in his interview, because he had a reasonable expectation of privacy.

A. Preliminary Background Facts

Detective Brewster testified about the telephone call. Once defendant indicated he wanted to call his girlfriend, the detective provided a telephone that was located outside the interview room, gave defendant instructions on how to use it, handed the telephone to defendant, and left the room. Defendant was not told the call would be monitored or recorded. The call was recorded. Defendant’s side of it appeared on the videotape. Also, the detective had attached a digital recorder to the telephone that would record both sides of the conversation. The detective thought the first call was cut off, and then defendant redialed. After the confession, the third call was made in the same fashion. There was no notice that it would be videotaped or recorded. There were no signs in the interview room indicating that the use of the telephone would be recorded, monitored or reported. The other party on the telephone was not informed, and there was nothing indicating the conversation was being recorded.

Although the written transcript of the videotape contains defendant’s side of the conversation, the videotape contained in this court’s file is silent during the time that defendant is on the phone with his girlfriend.

In limine, the defense objected to the admissibility of the recorded telephone conversations defendant had with his girlfriend at the time of his police interview. Defendant argued that he had a reasonable expectation of privacy in the conversation because there was no indication the calls were being recorded, the detective left the room, and defendant was provided with a telephone. He further objected to the admission of the recording on the grounds that the statements were irrelevant and more prejudicial than probative. (Evid. Code, § 352.) In response, the prosecution asserted there was no expectation of privacy in telephone calls made at the police station. Agreeing with the prosecution, the trial court overruled defendant’s objection; however, it reserved its ruling on relevance and prejudice.

Later in the proceedings, outside the presence of the jury, the defense reasserted its objection to the recorded telephone conversations, arguing there were no incriminating statements so the calls should be deemed inadmissible. The prosecution contended that the calls, when placed in context, contained admissions. Overruling the objection, the trial court found that the calls indicated consciousness of guilt, an issue appropriate for the jurors to decide.

B. Discussion

Defendant’s entire argument is based on his assumption that he had a reasonable expectation of privacy while in the police station. Defendant’s assumption is incorrect. Sections 2600 (deprivation of rights while imprisoned) and 2601 (retention of rights) do not confer a right to privacy in jailhouse conversations. Likewise, such right is not found in common law, the California Constitution’s privacy guarantee (art. I, § 1), or the constitutional prohibitions against unreasonable searches (U.S. Const., 4th Amend.; Cal. Const., art I, § 13). (People v. Loyd (2002) 27 Cal.4th 997, 1012 (conc. opn. of Werdegar, J.).) “[A]ll these sources require as a predicate to establishing an invasion of privacy or unreasonable search that the person had an objectively reasonable expectation of privacy in the invaded place, conversation or data source. [Citations.] Courts have generally found no reasonable expectation of privacy in jailhouse conversations for purposes of search and seizure law [citation], and [our state’s highest court] had . . . recognized the general rule that ‘an inmate of a jail or prison has no reasonable expectation of privacy’ in conversations while incarcerated [citation].” (Id. at pp. 1012-1013 (conc. opn. of Werdegar, J.); see also In re Joseph A. (1973) 30 Cal.App.3d 880, 882-884.)

Moreover, section 636, precluding recording of the conversation of a prisoner with a third person, applies only to the prisoner’s attorney, religious advisor, or licensed physician. “California law . . . permits law enforcement officers to monitor and record unprivileged communications between inmates and their visitors to gather evidence of crime.” (People v. Loyd, supra, 27 Cal.4th at p. 1010.) Since defendant does not assert that the telephone conversation involved an attorney, religious advisor, or licensed physician, the trial court did not err in admitting the telephone conversation.

“(a) Every person who, without permission from all parties to the conversation, eavesdrops on or records, by means of an electronic device, a conversation, or any portion thereof, between a person who is in the physical custody of a law enforcement officer or other public officer, or who is on the property of a law enforcement agency or other public agency, and that person’s attorney, religious advisor, or licensed physician, is guilty of a felony.” (§ 636.)

Regarding the relevance of the conversation, the trial court correctly found that defendant’s statements to his girlfriend were relevant to show knowledge of his intentional act. Such knowledge was relevant to rebut his claim that he only wanted to scare Victim. As for defendant’s claim that the statements were unduly prejudicial, we disagree. The jury heard the evidence of defendant’s confession and how he killed Victim. Such evidence was more inflammatory than defendant’s statements to his girlfriend that Victim was “gone as in dead.”

Notwithstanding the above, even if we were to assume that the trial court erred in admitting the conversations between defendant and his girlfriend, we find the error to be harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) As the People correctly note, defendant admitted during his police interview that he killed Victim. He admitted that after Victim opened the safe, they struggled. Once he gained control of her, he turned on the tap to fill the bathtub with water. Victim tried to fight, but defendant held her down under the water until she was motionless. Defendant tried to make the apartment look as if it had been burglarized. Defendant had over $18,000 cash and two of Victim’s rings in his pockets after the murder. Given this evidence, even if the taped conversation between defendant and his girlfriend had been omitted, the jury would still have convicted him. Defendant’s statements and the physical evidence demonstrated motive, opportunity, intent, and his conduct in killing Victim.

IV. FAILURE TO INSTRUCT ON LESSER OFFENSE OF MANSLAUGHTER

Defendant contends the trial court should have instructed the jury on the lesser offense of manslaughter.

A. Preliminary Background Facts

During the discussion of jury instructions, defense counsel requested that the jury be instructed on voluntary and involuntary manslaughter. The trial court inquired as to the evidence to support voluntary manslaughter. Defense counsel argued that on the issue of provocation, there was evidence of a prior argument between defendant and Victim, that defendant said that he just “snapped,” and that he had no intent to rob. Furthermore, defendant stated in his interview that he did not believe he had killed Victim. After he drowned her, he wrapped her up, contacted her husband, and took them to the hospital. The prosecution objected to the proposed instruction on voluntary manslaughter on the ground that any prior disagreement between defendant and Victim had been resolved and things had returned to normal. As to involuntary manslaughter, defense counsel argued that the killing could be viewed as accidental, i.e., defendant pushed Victim into the water during a struggle, but then he released her; he thought she was still alive. The trial court rejected defense counsel’s arguments finding that “there is [in]sufficient evidence to support voluntary or involuntary manslaughter.”

B. Discussion

A trial court has a duty to instruct on lesser included offenses only when there is substantial evidence that the lesser included offense, but not the greater charged offense, was committed. (People v. Breverman (1998) 19 Cal.4th 142, 154, 162.) A trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. Conversely, even on request, a trial court has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction. (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) In this context, substantial evidence is evidence sufficient to deserve consideration by the jury; in other words, it is evidence that a reasonable jury could find persuasive. (People v. Benavides (2005) 35 Cal.4th 69, 102.)

1. Voluntary manslaughter

Voluntary manslaughter presupposes an intentional killing. “A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of the lesser included offense of voluntary manslaughter. (§ 192.)” (People v. Barton (1995) 12 Cal.4th 186, 199.) Voluntary manslaughter instructions are justified only if, notwithstanding the fact the defendant harbored the intent to kill, there were circumstances negating the malice required for murder. “[A] defendant who intentionally and unlawfully kills lacks malice only in limited, explicitly defined circumstances: either when the defendant acts in a ‘sudden quarrel or heat of passion’ . . . or when the defendant kills in ‘unreasonable self-defense’ . . . . [Citations.]” (Ibid..)

According to CALCRIM No. 570, voluntary manslaughter requires substantial evidence of the following: (1) provocation; (2) that the defendant was under the influence of intense emotion that obscured his reasoning or judgment and caused him to act rashly; and (3) the provocation would have caused an average person to act rashly and without due deliberation or judgment. For a killing to be reduced to voluntary manslaughter, “slight or remote provocation is not sufficient.” (CALCRIM No. 570.) In other words, there can be no provocation when “enough time [has] passed between the provocation and the killing for a person of average disposition to ‘cool off’ and regain his or her clear reasoning and judgment . . . .” (CALCRIM No. 570.) The burden is on the defendant to establish both provocation and heat of passion. (People v. Dixon (1995) 32 Cal.App.4th 1547, 1552.)

Here, the evidence showed there had been an argument between defendant and Victim prior to her death. However, there was no evidence of any ongoing feud between the two. According to Kevin, defendant’s brother, the argument was “not a big deal.” Victim’s husband testified that he had spoken to Victim and Kevin had spoken to defendant. Kevin further testified that defendant had never lost his temper in front of him (Kevin). On the night of the killing, Victim had gone to bed prior to defendant returning home. Defendant had been gone for a few days. The evidence showed that Victim’s bedroom door was damaged and had been kicked or pushed in. Given this evidence, defendant instigated the event which led to Victim’s death. There was no evidence of any provocation that would have caused a person of average disposition to act in a heat of passion and without due deliberation.

2. Involuntary manslaughter

Involuntary manslaughter is treated as a lesser included offense to murder. (People v. Ochoa (1998) 19 Cal.4th 353, 422; People v. Saille (1991) 54 Cal.3d 1103, 1121.) A person commits involuntary manslaughter either by committing “an unlawful act, not amounting to felony,” or by committing “a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b).) Here, defendant contends that an instruction on involuntary manslaughter is supported by a theory that the killing was accidental. We find no evidence to support this theory. The record shows that defendant restrained Victim while he filled the bathtub with water. He then held Victim’s head under water as she struggled for her life. Defendant did not remove her from the water until she was motionless. The testimony established that it could have taken Victim anywhere from 15 seconds to a couple of minutes to be rendered unconscious. Defendant acted with the knowledge he was endangering Victim’s life and with deliberate conscious disregard for her life. There simply is no substantial evidence that warranted the involuntary manslaughter instruction under the facts of this case.

Even if it could be argued that the trial court erred by failing to instruct the jury on manslaughter, such failure to so instruct is subject to the Watson standard of review. (People v. Breverman, supra, 19 Cal.4th at p. 165.) As the People note, the jury’s verdict of first degree murder and special circumstance true finding that the murder was committed during the commission of a robbery shows that it rejected any possible theory of provocation or accident. The jury resolved the defense theory of the case, i.e., that defendant “snapped,” against him. “[I]n view of the actual verdict returned by the jury . . . there is no reasonable or plausible basis for finding that the instructional error affected the jury’s verdict.” (People v. Flood (1998) 18 Cal.4th 470, 505.) Moreover, the evidence overwhelmingly supports a first degree murder verdict under either of the prosecution’s theories of premeditation and deliberation or felony murder. As we noted above, defendant restrained Victim while he filled the bathtub with water, and then he held her head under the water until she stopped struggling. Alternatively, defendant broke into Victim’s bedroom, dragged her around the room, forced her to open the safe, took the money and jewelry out of the safe, and then killed her when she tried to escape. Accordingly, we find that it is not reasonably probable that the jury would have concluded that defendant committed only manslaughter.

People v. Watson (1956) 46 Cal.2d 818, 836.

Defendant argues that his statements and actions in taking Victim to the hospital warrant a favorable view of his claim of no intent to kill. We find such argument lacks merit. Instead of rushing to get help, defendant took the time to make it look like the apartment had been burglarized. His claimed act of concern for Victim’s life amounts to no more than an attempt to cover up his own culpability.

V. INSTRUCTION ON ROBBERY-MURDER SPECIAL CIRCUMSTANCE

Defendant contends the trial court’s instruction (CALCRIM No. 730) on the robbery-murder special-circumstance allegation was defective. Specifically, he argues the trial court erroneously omitted the final paragraph of the instruction (CALCRIM No. 730) and thus, the instruction as given, in conjunction with an instruction defining the continuous transaction rule of felony murder (CALCRIM No. 549), resulted in prejudicial error.

A. Preliminary Background Facts

The jury was instructed on felony-murder and robbery-murder special circumstance. The felony-murder instruction based on robbery was similar to the robbery-murder special-circumstance instruction, except that the felony-murder instruction informed the jury that it also applied to unintentional homicides. After the felony-murder instruction, the jury received CALCRIM No. 549 [Felony Murder: One Continuous Transaction—Defined]. That instruction, in part, provided: “In order for the People to prove that the defendant is guilty of murder under a theory of felony murder and that the special circumstance of murder committed while engaged in the commission of robbery is true, the People must prove that the robbery and the act causing the death were part of one continuous transaction.”

Unlike the special circumstance, the felony-murder rule applies even to an accidental killing committed during the perpetration or attempted perpetration of the underlying felony. (People v. Cavitt (2004) 33 Cal.4th 187, 197; People v. Navarette (2003) 30 Cal.4th 458, 505 [“if the felony is merely incidental to achieving the murder—the murder being the defendant’s primary purpose—then the special circumstance is not present, but if the defendant has an ‘independent felonious purpose’ (such as burglary or robbery) and commits the murder to advance that independent purpose, the special circumstance is present”].)

The jury then received CALCRIM No. 730 [Special Circumstances: Murder in Commission of Felony (Pen. Code, § 190.2, subd. (a)(17))], which provided: “The defendant is charged with the special circumstances of murder while engaged in the commission of a robbery. To prove a special circumstance is true, the People must prove that, one, the defendant committed robbery; two, the defendant intended to commit robbery; three, the defendant did . . . [an] act that caused the death of another person; and four, the act causing the death and the robbery were part of one continuous transaction. [¶] To decide whether the defendant committed robbery, please refer to the separate instructions that I will give you on that crime. You must apply those instructions when you decide whether the People have proved first degree murder under a theory of felony murder. [¶] The defendant must have intended to commit the felony of robbery before or at the time of the act causing death.” (Emphasis added.)

Without objection by defense, the trial court omitted the language of the final paragraph of CALCRIM No. 730, which would have instructed the jury: “In addition, in order for this special circumstance to be true, the People must prove that the defendant intended to commit robbery independent of the killing. If you find that the defendant only intended to commit murder and the commission of robbery was merely part of or incidental to the commission of that murder, then the special circumstance has not been proved.” Following CALCRIM No. 730, the jury was instructed with CALCRIM No. 1600, which defines robbery.

B. Discussion

Referring to the above highlighted sentences, defendant states, “It is apparent that . . . the requirements for felony murder and the special circumstance are identical.” However, he contends that such is not applicable in this case because he “admitted the killing but said he drowned [Victim] without regard to the robbery. That is, the murder was the purpose, and the robbery was at worst to cover up the identity of the killer, a part of the crudely faked burglary.”

The People respond that there is no duty to give the final paragraph of CALCRIM No. 730 “where there is no evidence to support an inference that the defendant killed the victim without an independent intent to commit the specified felony. (People v. Monterroso (2004) 34 Cal.4th 743, 767.)” Turning to the facts of the case, the People argue “there was no substantial evidence to reasonably suggest that [defendant] forced his entry into [Victim’s] room and committed a robbery in order to murder [her].” We agree with the People.

The evidence shows that defendant and Victim had had an argument about one month before she was killed. However, according to the other two occupants of the apartment, the matter had been resolved and it was “not a big deal.” Prior to November 14, 2004, defendant had spent a few days in Los Angeles with some friends. He had also quit his job. He returned to the apartment after 11:30 p.m. on November 14. He kicked or pushed in Victim’s bedroom door while she was sleeping. He dragged her around the room and then forced her to open the safe. During his interview with the police, defendant claimed that he was trying to scare Victim. Once the safe was open, and defendant’s attention was turned to its contents, Victim attempted to escape. Defendant pursued her and attacked her in the bathroom, where he held her down as he filled the bathtub with water. While she struggled, he forced her head under the water, where he kept it until she ceased to struggle. Following her death, defendant made the apartment look as if it had been burglarized. He came up with a plan to cover his actions. He took Victim to Tan and said that someone had broken in and hurt Victim. He maintained his story until the money and jewelry were discovered in his pockets. If he did not intend to rob Victim, then he could have replaced the money and jewelry in the safe prior to his closing and relocking it. He did not do so.

Although defendant claims his primary intent was to kill Victim, and that the robbery was “at worst to cover up the identity of the killer,” the evidence shows otherwise. Defendant needed Victim alive to open the safe; however, once it was open, Victim was the only witness. As the People point out, killing Victim prevented her from identifying defendant as her robber assailant. With Victim silenced, defendant was able to claim that when he returned to the apartment, it appeared that someone had broken in and assaulted Victim. If defendant’s primary intent was to kill Victim, he could have done that immediately after breaking into her bedroom. He did not. As such, the evidence supports a finding that defendant killed Victim to advance the robbery or to facilitate his own escape and avoid detection. (People v. Monterroso, supra, 34 Cal.4th at p. 767.) It does not support a reasonable inference that the robbery was committed merely to facilitate the murder, i.e., defendant’s intent to kill Victim was independent from his intent to commit the robbery. Thus, the trial court was not required to instruct the jury with the final paragraph of CALCRIM No. 730. (People v. Navarette, supra, 30 Cal.4th at p. 505.) Alternatively, even if defendant possessed concurrent intents to kill and to rob, such concurrent intents will still support the felony-murder special circumstance. (People v. Monterroso, supra, at p. 767.)

Furthermore, defendant contends the error in omitting the last paragraph of CALCRIM No. 730 was compounded by instructing the jury with CALCRIM No. 549, which requires a finding that “the robbery and the act causing the death were part of one continuous transaction.” (Emphasis added.) The jury was provided with a list of factors that could be considered in deciding whether the act causing the death and the robbery were part of one continuous transaction. (CALCRIM No. 549.) However, because the People were not required to prove any of those factors, defendant argues that “[w]ithout the omitted portion of CALCRIM 730, the jurors were . . . instructed that they need not find the defining difference of the special circumstances and certainly it did not have to be proven to them by any standard.”

We disagree. As we have already stated, the trial court was not required to give the final paragraph of CALCRIM No. 730 given the facts in this case. Nonetheless, CALCRIM No. 549 was instructive on the proper measure for defining the duration of a felony for purposes of determining felony-murder liability. (People v. Cavitt, supra, 33 Cal.4th at pp. 203-204.) CALCRIM No. 730 instructed the juror that the prosecution had to prove “[t]he act causing the death and the [r]obbery were part of one continuous transaction.” CALCRIM No. 549 listed the factors which the jury could consider in deciding whether the robbery and the murder were part of one continuous transaction. (See, e.g., People v. Welch (1972) 8 Cal.3d 106, 118-119; People v. Chavez (1951) 37 Cal.2d 656, 669-670; see also People v. Hernandez (1988) 47 Cal.3d 315, 348 [rejecting “strict construction of the temporal relationship” between felony and killing as to both first degree murder and felony-murder special circumstance].) As the People point out, CALCRIM No. 549 “provides a clear and convenient way of illustrating to the jury the type of connection it must find between the underlying felony and the homicide.”

For the above reasons, we find that the jury was properly instructed under CALCRIM Nos. 730 and 549.

VI. INSTRUCTION ON POSSESSION OF RECENTLY STOLEN PROPERTY

Defendant contends the trial court prejudicially erred in orally instructing the jury with CALCRIM No. 376 [Possession of Recently Stolen Property as Evidence of a Crime].

A. Preliminary Background Facts

Defense counsel requested that the jury be instructed with CALCRIM No. 376. During a break in the prosecution’s closing argument, and outside the presence of the jury, the trial court stated: “I want to call your attention [to] an issue I noticed in the jury instructions. [¶] Instruction 376 relating to possession of stolen property should be limited to the special circumstances allegation. I don’t think it’s appropriate to tailor that instruction to refer to guilt on the murder charge. And if you—if you would like to look at the use notes for that instruction, it indicates that it’s not appropriate to give the instruction in connection with the murder charge; but there are a couple of cases that say that it is appropriate to give it in connection with the [special] allegation. [¶] So I think I need to correct that to limit it to just the allegation that the alleged murder was committed during the commission of a robbery.” Defense counsel withdrew its request for the instruction. The trial court indicated it would delete CALCRIM No. 376 from the jury instructions. However, when the trial court read the instructions to the jury, it included CALCRIM No. 376. The written instructions did not include this instruction. Thus, defendant argues prejudicial error on the grounds that given the fact that the trial court orally gave the instruction, its absence from the written instructions, if noted, would be viewed as a comment by the judge on the evidence and how the jury should view it.

B. Discussion

Clearly, the trial court erred in orally instructing the jury with CALCRIM No. 376. (People v. Prieto (2003) 30 Cal.4th 226, 248-249.) “State law error at the penalty phase requires reversal when there is a reasonable possibility the error affected the verdict. [Citation.] That standard is ‘the same, in substance and effect, as the harmless beyond a reasonable doubt standard of [Chapman v. California, supra, 386 U.S. at p. 24].’ [Citations.]” (People v. Rogers (2006) 39 Cal.4th 826, 901.)

Here, although the trial court erred, we find the error to be harmless under either standard. We do not believe the jury would have understood the court’s oral instruction to permit it “to find the defendant guilty of murder ‘beyond a reasonable doubt’ but based upon a false inference provided by the trusted judge.” First, the People correctly note that defendant’s guilt for murder depended, in part, upon the felony-murder rule. Thus, in finding defendant to be both a robber and a murderer, it was reasonable for the jury to consider the fact that he was in possession of the Victim’s money and jewelry. Also, the jury separately found that defendant killed the Victim during the course of the robbery. Apart from the substantial evidence pointing to him as the killer, i.e., he confessed, this separate finding is supported by defendant’s possession of the money and jewelry. Second, the jury received instructions which properly defined the elements of the charges (CALCRIM Nos. 520, 521, 540A, 730, & 1600), and the prosecution’s burden of proof (CALCRIM Nos. 103 & 220). Thus, the instructions as a whole clearly conveyed to the jury that in order to convict defendant of murder, it had to find him guilty of the elements of the charged offenses beyond a reasonable doubt. Third, when the court orally instructed the jury with CALCRIM No. 376, we note that it stated: “Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.” And finally, as we have noted throughout our opinion, the evidence overwhelmingly supported defendant’s murder conviction. Thus, there is no reasonable possibility the error affected the verdict, and any error was harmless beyond a reasonable doubt.

VII. IMPOSITION OF PAROLE RESTITUTION FINE

The People concede that the imposition of the parole restitution fine under section 1202.45 was improper because defendant was sentenced to a life term without the possibility of parole. We agree with that concession. (People v. Jenkins (2006) 140 Cal.App.4th 805, 819.) We will therefore order the parole restitution fine stricken.

VIII. DISPOSITION

The parole restitution fine is ordered stricken and the clerk of the superior court is ordered to amend the abstract of judgment to reflect this modification and forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

We concur: RAMIREZ, P.J., GAUT, J.

“[DEFENDANT]: (Nods head up and down).

“INVESTIGATOR BREWSTER: All righty. You understand that?

“[DEFENDANT]: Uh-huh, (Nods head up and down).

“INVESTIGATOR BREWSTER: Anything you say can, and will be used against you in court. You understand that?

“[DEFENDANT]: (Nods head up and down).

“INVESTIGATOR BREWSTER: You have the right to the presence of an attorney before and during any questioning. Do you understand that?

“[DEFENDANT]: (Nods head up and down).

“INVESTIGATOR BREWSTER: If you cannot afford an attorney, one will be appointed for you, free of charge, before any questioning. Do you understand that?

“[DEFENDANT]: (Nods head up and down).”


Summaries of

People v. Thanh

California Court of Appeals, Fourth District, Second Division
Sep 11, 2008
No. E043188 (Cal. Ct. App. Sep. 11, 2008)
Case details for

People v. Thanh

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TOMMY THANH, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Sep 11, 2008

Citations

No. E043188 (Cal. Ct. App. Sep. 11, 2008)