P. v. Pham

Filed 7/13/06 P. v. Pham CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Marguerite L. Wagner, Judge. Affirmed.

Vinh Quang Pham was convicted of first degree murder, exhibiting a firearm, two counts of assault with the intent to commit a felony, rape, attempted rape, assault with a firearm and making a criminal threat. It was also found true as to some counts that Pham used a firearm or deadly weapon within the meaning of Penal Code^[1] sections 12022.53, subdivision (d), 12022.53, subdivision (b), 12022, subdivision (b)(1), and 12022.3, subdivision (a). Pham was sentenced to two consecutive 25 years-to-life prison terms, plus a consecutive determinate term of 21 years, 8 months.

Pham appeals, arguing the evidence was insufficient to support his rape conviction, the trial court erred in failing to suppress evidence seized at his home and in denying his motion to sever counts.

FACTS

A. Prosecution Case

Appellant married Oanh Quach (Oanh) in 2000. In 2003 Oanh's sister Huong T. began living in the Pham home. Appellant was obsessed with Huong. In March or April 2003 appellant told her that if she did not end her relationship with her boyfriend Johnny Nguyen appellant would harm him.

In April 2003 appellant was upset because he did not have a job. During that period appellant showed Huong a gun and threatened suicide. During a struggle over the gun, Pham fired a shot into the wall. Appellant demanded that Huong end her relationship with Nguyen so they could be together. On one occasion appellant called Nguyen and asked him to come to the house. Huong, fearing for Nguyen's safety, screamed that he should stay away. Huong ran from the room. Appellant followed and threatening her with the gun, raped her. Huong did not report the rape to the police.

On June 27, 2003, appellant drove Huong to work. He became irritated when he learned Nguyen would pick her up. Appellant visited Huong at work that night. She noticed he was driving a van that did not belong to him. Nguyen picked up Huong about midnight, took her home and departed at approximately 12:30 a.m. Huong believed appellant had left that night to go to Northern California. When she discovered he had not left, she became concerned about Nguyen's safety and attempted to locate him.

That morning, Nguyen's body was found lying next to the open driver's door of his car near his home in Escondido. He had been shot 10 times, including 2 shots to the head fired from close range. A number of .22 and .25 caliber bullets and casings were found in the area of Nguyen's body. No weapons were found in Nguyen's car. Skid marks at the scene were left by a vehicle consistent with a van appellant rented several days before the shooting.

In October 2003 Huong and Oanh, fearing for their safety, went to the police and reported the April rape and prior incidents involving appellant and guns. Before the women went to the police, appellant left a telephone message threatening to kill Huong like he killed Nguyen. Appellant later became angry and attempted to rape Huong again.

During a search of appellant's home, a .25 caliber bullet was found embedded in the wall. Tests revealed that the bullet was fired from the same .25 caliber firearm used to shoot Nguyen. In a locked cabinet in appellant's garage the police found documents, including one bearing directions to Nguyen's house. A handwriting expert concluded some notes found in the cabinet were written by appellant but could not say whether he wrote the note bearing the directions to Nguyen's house.

Shortly before Nguyen was shot, appellant asked a friend, Trung Vu, to help him find where Nguyen lived. Vu wrote down directions to Nguyen's house and gave them to appellant. After the shooting appellant bragged to Vu that he drove to Nguyen's house and shot at him. Appellant told Vu that Nguyen got in his car and appellant followed. When Nguyen crashed his car, appellant shot him.

B. Defense Case

An expert testified the skid marks found at the shooting scene were not made by the van appellant had rented. Appellant's father stated appellant rented the van to drive to Northern California. A witness testified Nguyen carried a gun in his car.

DISCUSSION

A. Sufficiency of Evidence

Appellant argues the evidence was insufficient to support his conviction for rape. Appellant notes there was no corroboration of Huong's claim that he raped her, there was a six-month delay between the claimed date of the crime in April 2003 and her report of it in October 2003, and that after the claimed rape Huong maintained contact with appellant. She stated she felt close to him and he assisted her in getting an abortion.

In determining whether the evidence is sufficient to support the verdict, we review the entire record, viewing the evidence in the light most favorable to the judgment and presuming in support of the verdict the existence of every fact the jury could reasonably deduce from the evidence. The issue is whether the record so viewed discloses evidence that is reasonable, credible and of solid value such that a rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th 1114, 1156.)

1. Background

Huong testified she came to the United States in May 2002 and lived in a house with her maternal grandfather, her older sisters and appellant and her brother-in-law. She stated appellant was irrationally jealous of her relationship with murder victim Johnny Nguyen. Appellant acted out in a variety of ways, some of which were criminal, e.g., waiving a gun at Nguyen. Those acts were not reported to the police.

Huong testified that in April 2003 she was with appellant at the house. Appellant, armed with a gun, threatened to commit suicide. Huong called appellant's wife and asked her to come home. She did so. The situation was brought under control and Huong's sister returned to work. Huong, with great reluctance, testified that after her sister left appellant asked her to stop seeing Nguyen. When she declined, he became angry. Huong ran to her room. Appellant followed. Appellant removed Huong's clothes as she resisted and told appellant to leave her alone. Appellant pointed a gun at her and had sexual intercourse with her. After the assault appellant apologized.

As a result of the rape Huong became pregnant. Appellant later took Huong to get an abortion. She did not report the attack to the police or to her sister. She stated the reason she did not was because it would only make the problem greater.

On October 17, 2003, after Nguyen's murder, Huong was home alone with appellant. Appellant became angry. He first used scissors to cut Huong's clothes. Appellant then pushed Huong onto the bed and removed her clothes. Appellant stated he wanted to have sexual intercourse with her in front of her family.

On cross-examination Huong stated she had a good relationship with appellant, she did not want rape charges filed against him and wanted them dismissed.

2. Discussion

Noting Huong delayed reporting the rape, her testimony was uncorroborated, that she maintained contact with appellant after the crime and that Huong stated she and appellant remained close, appellant argues the evidence was insufficient to convict him of the crime.

As appellant notes the testimony of a single witness is sufficient to prove the crime of rape. (Evid. Code, § 411; People v. Caudillo (1978) 21 Cal.3d 562, 571.) There was nothing incredible in Huong's testimony. Given the nature of the crime of rape and its psychological effect on victims, particularly in the context of the present case, the late report of the crime, the absence of corroborating testimony or physical evidence and the continued relationship between victim and perpetrator, are not unusual and have not rendered her testimony or the evidence against appellant insufficient.

B. Consent Search

Appellant argues the trial court erred in denying his motion to exclude evidence seized by the police from a locked cabinet in the garage of his home. Appellant contends his purported consent to a search of the cabinet was involuntary and, thus, did not provide a lawful basis for the warrantless search.

1. Background

Appellant filed a motion pursuant to section 1538.5 to suppress evidence seized during a search of his home. As relevant on appeal he argued an illegal seizure of evidence from a locked cabinet in his garage. Appellant noted there was no search warrant authorizing the seizure and argues that any consent given by him for the search was involuntary.

Appellant's wife was interviewed by officers in the early evening on October 18, 2003. She stated appellant might have guns in a gray cabinet in the garage at their house. Both appellant's wife and Huong consented in writing to a search of the house.

Appellant was interviewed by officers after his arrest in the early morning hours of October 19, 2003. The interview was preceded by a Miranda warning designed specifically for persons from Southeast Asia who might believe they had no right to refuse to speak to the police. Appellant stated he understood his rights and waived them. After the tape recorded portion of the interview, appellant consented to the search of a locked cabinet in his garage. Appellant told the officers they would find nothing in the cabinet. During the tape recorded portion of the interview, appellant on two occasions told the officers they could search the house, the garage and the cabinet for the gun.

Officers testified they went to appellant's home at approximately 8:00 p.m. on October 19, 2003. The officers did not have a search warrant but conducted a search of the premises based on the consent of appellant, appellant's wife and Huong. As part of that search an officer used a screwdriver to pull the hinges off a large, gray, locked wood cabinet found in the garage. The officer who opened the cabinet believed it belonged to appellant.

In the cabinet the officers found a handwritten note bearing the victim's name, address and date of birth. Directions to the victim's home were contained on a separate piece of paper.

The trial court denied appellant's section 1538.5 motion and specifically found appellant consented to a search of the gray cabinet.

B. Law

The voluntariness of consent is a question of fact to be determined from the totality of circumstances. If the validity of a consent is challenged, the prosecution must prove it was freely and voluntarily given. (People v. Boyer (2006) 38 Cal.4th 412, 445-446.) Our review of the trial court's finding that defendant voluntarily consented to a search is limited. The voluntariness of the consent is to be determined in the first instance by the trier of fact; and in that stage of the process, the power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court's findings must be upheld if supported by substantial evidence. (People v. Monterroso (2004) 34 Cal.4th 743, 758.)

C. Discussion

The Attorney General concedes the consents to search given by appellant's wife and Huong did not provide authority for a search of the cabinet because the officers understood appellant had sole control of it. (See People v. Jenkins (2000) 22 Cal.4th 900, 976-978.) The issue then is whether substantial evidence supports the trial court's finding appellant voluntarily consented to a search of the cabinet. It does.

Special care was taken to ensure appellant understood his Miranda rights. While a Miranda admonition does not deal directly with the right to refuse consent to a search, it does generally suggest that a suspect may deny such consent. During the tape recorded portion of appellant's interrogation, he denied the cabinet contained guns, told the officers they could search the cabinet and told them they would find nothing -- in fact, no gun was found. After the interview appellant gave specific, albeit verbal, consent to a search of the cabinet. While appellant was under arrest at the time he gave consent, that fact is not determinative. Based on the record the trial court could reasonably conclude appellant understood he was not required to consent to a search and there were no circumstances suggesting his will had been overborne. The trial court properly denied appellant's section 1538.5 motion.

C. Severance of Counts

Appellant argues the trial court erred when it denied his motion to sever the murder charge from those involving the rape, attempted rape and criminal threats made to Huong.

1. Background

Appellant was charged with a series of crimes involving several victims. As to John Nguyen, appellant was charged with murder and exhibiting a firearm. As to Huong, he was charged with rape, attempted rape, assault with a firearm, assault with a deadly weapon and making a criminal threat.

By motion appellant asked the trial court to sever the rape and rape-related charges involving Huong from the murder and assault charges involving John Nguyen. Appellant argues the two groups of charges were neither of the same class nor transactionally related. The prosecution opposed the motion, arguing the crimes were of the same class and were transactionally related. As to the crimes' transactional relationship, the prosecutor noted all the crimes were related to appellant's obsession with Huong.

After argument on the matter, the trial court denied the motion to sever counts.

2. Discussion

A defendant may be charged with two or more offenses "connected together in their commission" or with two or more offenses of the same "class." Even if properly joined, the trial court may sever charges for "good cause" and "in the interest of justice." (§ 954.) Two offenses are connected together in their commission when "linked by a common element of substantial importance." (People v. Mendoza (2000) 24 Cal.4th 130, 160, internal quotation marks omitted.) Offenses are of the same class if they have common attributes. (People v. Thorn (1934) 138 Cal.App. 714, 734-735.) Rape and murder are assaultive offenses and are of the same class. (People v. Johnson (1988) 47 Cal.3d 576, 587; People v. Kemp (1961) 55 Cal.2d 458, 474-476.)

The charges of murder, the rape and the rape-related crimes in this case were properly joined because they were crimes of the same class and because a common element of substantial importance linked them, i.e., they all arose from and related to appellant's obsession with Huong and his jealousy of Nyugen.

The burden is on the party seeking severance to establish there is a substantial danger of prejudice requiring the charges be separately tried. The issue on appeal is whether the trial court abused its discretion in denying severance. (People v. Carter, supra, 36 Cal.4th at pp. 1153-1154.)

Each case must be considered on its unique facts. Some factors to consider are whether evidence related to the various charges would be cross-admissible in separate trials, the inflammatory impact of the various charges and whether the evidence of one of the joined charges is weaker than the others. While a finding that evidence is cross-admissible between joined offenses negates a finding of prejudice in their joinder, the absence of such admissibility does not alone establish prejudice. (People v. Carter, supra, 36 Cal.4th at p. 1154.)

The trial court did not err in refusing to sever the charges. The murder of John Nyugen and the assaults on Huong were related and even in a separate trial it would have been impossible to wholly insulate them from each other. In any case neither the murder nor the rape and rape-related offenses was significantly more inflammatory than the other. The evidence supporting the charge of murder was stronger than the evidence of appellant's sexual assaults against Huong. It is usually the case, however, that evidence on some counts is greater than on others. The difference here was not so great that their severance was required.

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

AARON, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.