Opinion
G044510 Super. Ct. No. 09WF0993
11-02-2011
THE PEOPLE, Plaintiff and Respondent, v. PHI HUNG NGUYEN, Defendant and Appellant.
Edward J. Haggerty for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Felicity Senoski and Scott Taylor, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed in part and reversed and remanded in part.
Edward J. Haggerty for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Felicity Senoski and Scott Taylor, Deputy Attorneys General for Plaintiff and Respondent.
Phi Nguyen appeals from a judgment of conviction sentencing him to 24 years in prison for the burglary of a Westminster home. The long sentence is the product of his four prior felony convictions. The main issue in this appeal concerns one of those four prior convictions. Both sides agree the evidence presented by the prosecutor at the sentencing phase of trial concerning Nguyen's 1994 conviction for burglary in Kansas does not necessarily show he committed a "serious felony" under Penal Code section 667, subdivision (a)(1) [serious felonies entail "five-year enhancement for each such prior conviction on charges brought and tried separately"]. (All further statutory references are to the Penal Code.) There is a slight difference between the Kansas and California definitions of burglary: In Kansas it is sufficient if the defendant developed the intent to commit a felony after entering a dwelling; in California it isn't. The Attorney General requests remand so more evidence can be taken on the issue. Nguyen contends any such remand would violate the Double Jeopardy Clause. Because both United States Supreme Court and California Supreme Court precedent now plainly allow for such a remand, we decline Nguyen's invitation to issue an advisory opinion telling those courts that otherwise valid precedent has been silently overruled.
There is also a secondary issue concerning purported "Griffin error" by the prosecutor based on two comments made to the jury. On review, however, the comments bore, at most, only an oblique relationship to Nguyen's decision not to testify. Accordingly, no Griffin error is shown.
FACTS
A homeowner left his residence on Warren Street in Westminster about 8:30 on the morning of May 12, 2009, but returned home at 10 a.m. to discover his residence had been burglarized. Missing items included a tin container with coins, a bottle of cognac, a bottle of men's cologne, and two cell phones. About the same time, a Westminster police officer was in his patrol car looking for an Asian man in his 20's wearing a cream-colored hat who had been seen earlier that morning peering into the window of a home on Salem Avenue. As the officer was approaching Warren Street, driving eastbound on nearby Jennrich Avenue, he saw a gray van parked at the curb. But as soon as the officer drove into view, the van took off. The officer put his lights on and tried to catch the van.
The van pulled over. The driver was appellant Nguyen. Inside the van was found loot from the Warren Street burglary, including the two cell phones, the tin container of coins, and the cognac. A latex glove was found in Nguyen's left front pocket, and there were also latex gloves on the drivers side floorboard.
Phi Nguyen was not, however, the Asian man in his 20's who had been seen peering into the window of the Salem Avenue residence. That person was later identified as Ngan Nguyen. One fingerprint taken from inside the van matched the right thumb of Ngan Nguyen. (From now on, all references to just "Nguyen" are to Phi Nguyen and not to Ngan Nguyen.) A crime investigator also found a piece of a latex glove just inside the front door of the Warren Street residence.
Nguyen was subsequently convicted of first degree burglary plus receiving stolen property. Because of four prior convictions, Nguyen received a total sentence of 24 years. The 24 years consists of: 12 years for the burglary, two five-year consecutive terms for two prior convictions in 1994 and 1995, and two consecutive one-year terms for two prior convictions in 2000 and 2005. The trial judge stayed a six-year sentence for receiving stolen property. (§ 654.) The trial judge also struck, albeit only for purposes of the "Three Strikes" law, the 1994 conviction. The net result was that Nguyen's net extra punishment for the 1994 conviction, which took place in Kansas, was a five-year enhancement for having a "prior serious felony" on his record under section 667, subdivision (a)(1). The main issue in this appeal is the effort of Phi Nguyen to have that extra five years eliminated.
We recount additional facts and the prosecutor's comments giving rise to the claim of Griffin error below.
DISCUSSION
1. The 1994 Kansas Conviction
The 1994 conviction was in Kansas, for burglary. On appeal, Nguyen points out that, theoretically, he could have been convicted of burglary in Kansas for either having entered into, or remained within, a structure having the intent to commit a felony. The Attorney General concedes that California's definition is more narrow. There must be felonious intent at the time when a defendant enters into a structure; merely remaining within the structure with felonious intent is not sufficient. The Attorney General also concedes that the records presented by the prosecution in this case, namely an information filed in October 1993 in Kansas did not necessarily establish Nguyen's intent at the time of entry. The parties disagree over whether the discrepancy allows for a remand for retrial on the prior conviction, as the Attorney General advocates, or whether, as Nguyen advocates, any such remand would violate the Double Jeopardy Clauses of the state and federal Constitutions.
In Monge v. California (1997) 16 Cal.4th 826 (Monge I), the prosecution failed to establish a prior conviction allegation in a first trial. The prior conviction allegation was that the defendant had personally used a deadly weapon. (Id. at p. 831.) The prosecution neglected to establish personal use and wanted another chance. It got it. The high court squarely held that there could be a retrial of that prior conviction allegation since it was a noncapital case. The three-judge lead opinion noted any number of dissimilarities between sentencing proceedings and trials of substantive offenses (see id. at pp. 837-840), and concluded "double jeopardy does not apply to the trial of the prior conviction allegation." (Id. at p. 843.) Justice Brown similarly noted that a failure to "prove a prior conviction allegation" does not "require the fact finder to reevaluate the evidence underlying the substantive offense." (Id. at p. 847 (conc. opn. of Brown, J.).)
Monge I was affirmed by the United States Supreme Court in Monge v. California (1998) 524 U.S. 721 (Monge II), in a five-four vote. The Monge II majority continued with the theme that sentencing, in noncapital cases, cannot be "analogized to an acquittal" that would otherwise bar a retrial under the Double Jeopardy Clause. (Id. at p. 729.) In this appeal we follow Monge I and Monge II and hold retrial is permissible. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.)
Moreover, we will also decline the invitation, extended to us by both parties at oral argument, to decide the issue of whether Nguyen's 1994 Kansas conviction fell within the California definition of burglary insofar as the habitation of the structure involved might bear on the issue of that conviction. An issue depending on the nature of a habitation in Kansas over 17 years ago seems particularly seems ill-suited to decision in a factual vacuum. (See Brewer v. Teano (1995) 40 Cal.App.4th 1024, 1037 ["We are unwilling to decide the issue in a factual vacuum."].) If this issue needs reconsideration, the trial judge can so on remand.
2. Griffin Error
Nguyen asserts that two statements made to the jury by the prosecutor constituted improper comment on defendant Nguyen's election not to testify. (See generally Griffin v. California (1965) 380 U.S. 609.)
When it comes to the meaning of words, context is everything. (See Novak v. Low, Ball & Lynch (1999) 77 Cal.App.4th 278, 283.) Hence we recount the context in which the prosecutor's comments were made.
a. first asserted instance
The prosecutor began by telling the jury that there were "two theories" on which it could convict: Either Nguyen actually went into the Warren Street residence himself, or he aided and abetted the burglary of the Warren Street residence by acting as the getaway driver.
The prosecutor began her argument as to the second theory by acknowledging that to prove aiding and abetting, she had to prove that Nguyen knew that the actual perpetrator of the burglary "intended to commit the crime."
The prosecutor then recounted the facts which pointed to the involvement of two people: When Nguyen was arrested in the van, two cups of coffee were found, one with cream, one was black. More than one set of latex gloves had been found. Gloves (or a portion of them) had been found in Nguyen's shirt, on the floorboard in the van, and in the house.
Further, a backyard window had been broken in the Warren Street house, plus a couch had been moved. The moving of the couch pointed to two people as culprits.
It was then that the prosecutor made the first of two "no explanation" remarks, albeit one that is not raised in this appeal: "We've got latex gloves, people crawling through the back. There's no other explanation" she said. Obviously, in context, the prosecutor's point was there was no other "explanation" for the existing facts but that two people had been involved in the burglary and Nguyen was one of them.
The prosecutor then elaborated on the theory that Nguyen was the getaway driver. As such, he might never have "gotten out of that car," but he would still be guilty of aiding and abetting.
It was while the prosecutor was on the theme that Nguyen and someone else had been acting together that she made the "no explanation" statement which the opening brief complains was Griffin error. But first we will quote the prosecutor's remarks immediately prior, so as to set the stage: "The defendant either went into the house and stole this property himself or he watched his friend who had, you know, they brought the gloves together and cased the joint [we recall here the story of Ngan Nguyen looking into the window of the Salem residence] and saw him hop over the side yard and bring property back to the car. I mean, again, that that's not normal behavior. That shows that he knew what was going on here."
Then came the language that Nguyen now asserts constituted Griffin error, and which is quoted in the opening brief: "He also had -- I know I keep harping on this but he had the latex glove in his pocket. There's no other explanation. None was offered. You can't speculate maybe the defendant, you know, is a surgeon or something."
We continue with the remarks that immediately followed, and which are not quoted in the opening brief: "There's no evidence of that. The only evidence you have is he was at location at that time with latex gloves that were found in the house. That's the only evidence that you have before you."
Nguyen now asserts that the words "There's no other explanation. None was offered" were somehow a comment on his decision not to testify. However, in context -- as shown by the prosecutor's argument just before and just after the purported Griffin error -- all the prosecutor was doing was to make the point that the evidence pointed to a crime committed by two people, linked by, among other things, three specific findings of latex gloves.
The prohibition on comment on the decision not to testify does not extend to "comments on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses." (People v. Medina (1995) 11 Cal.4th 694, 755.) The prosecutor's "no explanation" comment here merely pointed to the state of the evidence that showed a burglary had been committed by two individuals working in tandem.
b. second asserted instance
After the "no explanation" comment, the prosecutor turned to the stolen property found in Nguyen's van at the time of his arrest as well as Nguyen's taking off when he saw the officer, which, she asserted, constituted evidence that "he knew he was guilty." In that vein, a few moments later she confronted what Nguyen's own counsel had said in opening statement about the property: "In [defense] counsel's opening statement, she said that well, there might be other explanations for things. Maybe he was holding it for -- the property for a friend. He got caught in a bad situation."
But, having introduced the idea of alternative explanations, the prosecutor immediately sought to focus the jury on the actual evidence, as distinct from speculation based on what defense counsel had theorized in her opening statement: "Questions, attorneys statements, everything we say here is not evidence. There's no evidence of that."
And then came the second set of comments now posited as Griffin error and quoted in the opening brief: "The evidence showed you that the defendant was at the scene of a residential burglary at the timeframe that it happened with the property in his car. There's no evidence that he had a valid reason to be on this street." It appears that Nguyen asserts on appeal that a statement about an absence of a valid reason to be somewhere equates with a comment about a decision not to testify.
Afterwards, the prosecutor continued with her antispeculation theme. Here is what comes next and is not quoted: "You must only consider the evidence that's before you. And, in fact, you're going to get a jury instruction that says you may not speculate. You may not consider other reasons that weren't put before you. You can only consider the evidence that's before you."
In context, the allusion to "no evidence" of a "valid reason" was not a comment on Nguyen's decision not to testify, but a request to the jury to keep focused on the actual evidence. We might add that it was also the sort of evidence (i.e., Nguyen's presence at the scene of the crime at about the time of the crime) about which Nguyen could easily have called other witnesses, e.g., an employer who had sent him on an errand, a friend who lent him the van, or someone in his household who could have stated why he decided to go out for a drive that morning.
Comparison with the original Griffin case shows how far removed the case before us is from any real comment on a defendant's choice not to testify. In the original Griffin case, the "Griffin error" was unmistakable. (See Griffin, supra, 380 U.S. at pp. 610-611 ["'The defendant certainly knows whether Essie Mae had this beat up appearance at the time he left her apartment and went down the alley with her.'" "'These things he has not seen fit to take the stand and deny or explain.'" "'And in the whole world, if anybody would know, this defendant would know.'" "'Essie Mae is dead, she can't tell you her side of the story. The defendant won't.'"].) Here, by contrast, the language constituting the purported "Griffin error" is oblique at most, the argument entirely based on speculating about the inferences that might be abstracted from the phrase "no explanation."
In that regard we remark a particular irony. When a case presents exceptionally strong evidence of guilt, it is more likely to lead to a comment by the prosecutor that there is no other "explanation" for the facts other than guilt, and hence also more likely to lead to a claim of Griffin error if the prosecutor uses the obvious and natural word "explanation."
3. Other Matters
a. sentence on receiving stolen property
In its respondent's brief, the Attorney General agreed with Nguyen that there should be a remand to reduce the sentence on the receiving stolen property count. Specifically, the Attorney General agreed that Nguyen could receive a sentence no greater than 16 months on that count on the theory that, under People v. Nguyen (1999) 21 Cal.4th 197, 203-204, the appropriate sentence was one-third of the middle term, doubled. The middle term for receiving stolen property is 2 years. One-third of that is 8 months. Eight months doubled is 16 months.
At oral argument, however, the Attorney General's office took the position that the remand was not necessary because section 1170.1 only applies to consecutive sentences, and Nguyen's sentence on receiving stolen property count was stayed.
Normally, it is improper for an issue to be raised for the first time at oral argument by an appellant. (People v. Thompson (2010) 49 Cal.4th 79, 110, fn. 13 ["Because counsel failed to raise this comparative juror argument in her briefs, to raise it at oral argument was improper."]; In re J.G. (2008) 159 Cal.App.4th 1056, 1068 (J.G.) ["It is improper to make a legal argument for the first time at oral argument, and we could reject the argument out of hand on that basis."].) A reviewing court, however, may, in the exercise of its discretion, consider the issue. (See People v. Niles (1964) 227 Cal.App.2d 749, 758 ["At oral argument, counsel for appellant raised another point, not presented in his briefs. Although this is improper, we elect, under the circumstances of this case, to consider it."].) However, exercise of such discretion typically involves matters of some public interest. (E.g., J.G., supra, 159 Cal.App.4th at p. 1068 ["because this case involves procedural issues of general application in the state, we shall address the argument on the merits"].) Here, however, there is no such issue.
The rule against consideration of new issues has also been applied against respondents as well as appellants. (E.g., Sunset Drive Corp. v. City of Redlands (1999) 73 Cal.App.4th 215, 226 [declining to consider waiver and statute of limitations issues raised by respondent for the first time at oral argument]; accord, County of Sonoma v. Superior Court (2010) 190 Cal.App.4th 1312, 1326, fn. 10 [declining to address real party in interest's futility argument because not made in its briefs to appellate court].)
We further note also that the exercise of discretion to decline issues raised for the first time at oral argument is in arguable tension with the "better practice" of reviewing courts not to treat the failure to file a respondent's brief as a default, but to independently examine to see if it supports any claims of error made by the appellant. (See In re Bryce C. (1995) 12 Cal.4th 226, 232-233 ["Although some courts have treated the failure to file a respondent's brief as in effect a consent to a reversal, it has been said that the 'better rule . . . is to examine the record on the basis of appellant's brief and to reverse only if prejudicial error is found.'"]; Kucker v. Kucker (2011) 192 Cal.App.4th 90, 93, fn. 2; Riddle v. Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1.) After all, what is the difference between failing to file a respondents' brief at all, and raising for the first time at oral argument an issue not found in the respondent's brief?
We analyze the problem this way: Because the Attorney General's office did not argue, in its respondent's brief, that the trial court correctly imposed a six-year sentence on Nguyen, Nguyen's counsel was unfairly deprived of the opportunity to brief the issue which he otherwise would have had in his reply brief. His reply brief, in fact, devotes only a single sentence to the term imposed on count 2, and that sentence merely notes that the respondent has conceded the argument made in the reply brief. Therefore, we will decline to exercise our discretion to examine the merits of the belatedly raised defense of the Attorney General's (perhaps improvident) concession that the sentence must be reduced to 16 months.
On the other hand, the only reason we are declining to consider the merits of the argument is what might indeed prove to be an improvident concession by the Attorney General's office. The law may really allow for a six-year sentence, not a 16 month sentence. Accordingly, since this case is being remanded in any event, we will note that our opinion today does not preclude the prosecutor from arguing, on remand, that the sentence was correct in the first place. Nor does it preclude Nguyen from arguing, on remand, that it must be 16 months.
b. conduct credits
Both parties agree that Nguyen is entitled to 829 days of conduct credit. Here is the background on the conduct credit issue: Nguyen had actually spent 553 days in custody, from May 15, 2009 (date of his arrest) to November 19, 2010 (date of his sentencing). On the date of sentencing Nguyen's trial defense counsel said that Nguyen had "600 actual days" in custody, but that was a simple misstatement. The real figure, if one counts the days from May 15, 2009 to November 19, 2010, was 553. However, since the prosecutor apparently agreed with the 600-day figure (she didn't speak up at the time), the 600-day figure found its way into the abstract of judgment. The trial court also assumed that the 15 percent limit on conduct credits for persons convicted of "violent" felonies set forth in section 2933.1 (i.e., those felonies listed under section 667.5, subdivision (c)) applied to this case. On appeal, though, the Attorney General recognizes that, to be a violent felony, the burglary must occur when someone else other than the burglar or an accomplice was in the premises. (See § 667.5, subd. (c)(21).) And, here, there was no evidence that anyone other than Nguyen or his accomplice was in the Warren Street residence at the time of the crime. So the 15 percent limit does not apply.
Both sides agree that section 4019 governs. Section 4019 is a fairly lengthy statute, but has been reduced to a formula. (People v. Philpot (2004) 122 Cal.App.4th 893, 908; People v. Fry (19 Cal.App.4th 1334, 1341.) Applying the formula here goes like this:
-- Divide the number of days in custody by four. (Here, 553 divided by 4 equals 138.25.)
-- Round down to the nearest whole number. (Here, down to 138.)
-- Multiply by two. (Here, 138 times 2 equals 276.)
-- Add the result to the original number of days spent in custody. (Here, 276 plus 553 equals 829.) The correct answer is thus 829, and the judgment will have to be amended to that effect.
DISPOSITION
We reverse the judgment and remand for further proceedings in regard to the following particulars, and only these particulars:
(1) The judgment is reversed to the extent that it provides for more than an 19-year sentence. The court should resentence Nguyen if the 1994 Kansas burglary allegation is found true.
(2) The judgment is reversed to the extent that it provides for a six-year sentence, stayed, for Nguyen's conviction of receiving stolen property, and is remanded with directions to the trial court to reconsider Nguyen's sentence on count 2.
(3) The judgment is reversed to the extent that it does not provide for 829 days of conduct credits and is remanded with directions to the trial court to provide for 829 days of conduct credits.
The judgment is in all other respects affirmed.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
ARONSON, J.
IKOLA, J.