P. v. Tran
Filed 7/18/13 P. v. Tran CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
THE PEOPLE,
Plaintiff and Respondent,
v.
EMILY LETUYEN TRAN,
Defendant and Appellant.
C072200
(Super. Ct. No. 11F04439)
A
jury convicted defendant Emily Letuyen Tran of the
murder of Marissa Vilaysouk ( ADDIN BA xc <@st> xl 21 s
HPIZAX000001 xpl 1 l "Pen. Code, §§ 664/187"
Pen. Code,
§§ 664, 187 subd. (a); count one)
name="_ftnref1" title="">[1] and two counts of assault upon Vilaysouk
with a deadly weapon, to wit, a car ( ADDIN BA xc <@osdv> xl 19 s
HPIZAX000012 xpl 1 l "§ 245, subd. (a)(1)"
§ 245, subd.
(a)(1); counts two [in the dirt lot] and six [on Martin Luther King (MLK)
Boulevard]). The jury acquitted
defendant on additional counts charging
with a deadly weapon (counts three, four, and five) and criminal
threats (count seven).
Sentenced to state prison, defendant
appeals. She contends
evidence supports counts one and two. We conclude more than sufficient evidence
supports counts one and two. Defendant
also contends the trial court erroneously imposed a concurrent term for count
two since it was indivisible conduct from that in count one. The People concede. We agree and will modify the judgment
accordingly.
FACTS
“In reviewing the sufficiency of the
evidence, we must draw all inferences in support of the verdict that can
reasonably be deduced and must uphold the judgment if, after viewing all the
evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the elements of the crime beyond a reasonable
doubt.†( ADDIN BA xc <@cs> xl 41 s
HPIZAX000002 xhfl Rep xpl 1 l "
Cal.3d 57, 86" People v. Miranda (1987) 44 Cal.3d 57, 86.) Viewed in the light most favorable to the
prosecution and with all reasonably deducible inferences drawn in support of
the verdict, the following evidence was adduced at trial.
On June 19, 2011, Marissa Vilaysouk went to Wal-Mart with
David Saetuern who drove a four-door Acura Legend. Vilaysouk had previously
dated Saetuern who, at the same time, had dated defendant. Vilaysouk had met defendant and described
their meetings as “[m]ore than tense.â€
As Saetuern and Vilaysouk left
Wal-Mart, Saetuern seemed nervous, having seen defendant. Saetuern drove to the back of Wal-Mart where
they saw defendant who was driving a sport utility vehicle (SUV). Defendant stopped next to them, driver-side
to driver-side, but said nothing to them.
Saetuern drove out of the parking
lot and eventually onto Stockton Boulevard.
Defendant followed them. When
Saetuern stopped at a stoplight, defendant hit the back of their car. Saetuern drove onto Highway 99 and defendant
followed. Vilaysouk was frightened. Saetuern tried speeding away from defendant
but defendant gave chase and again hit Saetuern’s car.
Saetuern exited the highway at MLK Boulevard and when he stopped at the stop sign,
defendant hit Saetuern again. Vilaysouk
was afraid she might get hurt or die.
Saetuern continued on the boulevard and defendant followed. Defendant hit Saetuern’s car again, causing
his car to spin out and crash into a chain link fence around a dirt field. Vilaysouk and Saetuern both got out of the
Legend and started to run through the dirt field, believing that defendant was
going to hit his car again.
Defendant drove her car towards
Vilaysouk who zigzagged through the field up to a brick wall. Defendant hit Vilaysouk on the left side of
her body with the SUV, knocking Vilaysouk to the ground, and then crashed into
the brick wall which crumbled. Vilaysouk
dropped her purse as she fell and “blanked out†for a moment. She then heard Saetuern tell her to get up
and run. Vilaysouk and Saetuern ran to a
restaurant where Vilaysouk, who was in pain and bleeding from her head, arm,
legs, and foot from lacerations and abrasions, sat down and called 911.
Manuel Nunez witnessed defendant
accelerate her SUV towards Vilaysouk, making a “hard left†towards her, and
strike the brick wall, hitting and ejecting Vilaysouk away from the brick
wall. Nunez was “amaz[ed]†that
Vilaysouk was able to get up and run to the restaurant. Nunez saw defendant get out of the SUV, pick
up Vilaysouk’s purse, remove something from the wallet, and then throw the
purse onto the ground. When Nunez asked
defendant what was happening, defendant claimed “they stole my car.â€
Defendant followed Vilaysouk to the
restaurant, entered, and threatened Vilaysouk, “Bitch, I’ll kill you.†Vilaysouk was afraid for her life. Removed from the restaurant by its employees,
defendant stood outside the door, banged on the windows, and stared at
Vilaysouk.
California Highway Patrol Officer
Hugh Council responded to a call of highway violence which ended in a
collision. Officer Council arrested both
defendant and Saetuern. Saetuern was
arrested because defendant claimed that the Acura Legend belonged to her and
that Saetuern did not have permission to drive it. After having been advised of his rights,
Saetuern recounted the chase consistent with Vilaysouk’s account.
Defendant admitted that she had “bump[ed] into†Saetuern’s car a few
times. She did not answer how her SUV
crashed into the brick wall. She never
claimed she lost control. Defendant was
found in possession of Vilaysouk’s identification card. Defendant explained that she wanted to know
who was in the car with Saetuern. The
SUV had “major front end damage.†The
officer opined that defendant had not lost control of her SUV and that the
impact with the brick wall at 25 to 35 miles per hour was intentional based on
the lack of skid marks in the dirt and the direct angle of impact.
Defendant testified. She stated that she and Saetuern had been
dating for six years. She considered the
Acura Legend hers even though originally purchased by Saetuern’s mother because
defendant had paid for the license, registration, and smog. Saetuern’s license had been revoked but he
still drove the car, receiving parking tickets, and let others drive.
On June 19, 2011, defendant and
Saetuern had an argument about the Acura Legend which both wanted to drive that
day. Defendant directed Saetuern to
drive her to work and then to return home with it. After work, defendant went to Wal-Mart in her
mother’s car and saw Saetuern driving the Acura Legend. She followed and met Saetuern in the back of
Wal-Mart and they made eye contact. She
chased him on the streets and when he braked hard, she hit his car. She denied hitting him on the highway. She followed him off the highway and hit his
car, causing his car to spin out. She
continued at 60 miles per hour straight into the brick wall. She had tried to hit the brakes but hit the
gas instead. She heard a scream but did
not see Vilaysouk prior to hitting the wall.
She followed them to a restaurant, yelled for Saetuern to meet with her
outside, and denied threatening Vilaysouk.
Defendant denied trying to hit or kill anyone with her SUV in the dirt
lot. She returned to the field and took
out Vilaysouk’s identification.
DISCUSSION
I
Defendant contends insufficient
evidence supports count one, attempted murder of Vilaysouk. We reject her contention.
“ ‘Attempted murder requires
the specific intent to kill and the commission of a direct but ineffectual act
toward accomplishing the intended killing.
[Citation.] Attempted murder
requires express malice, that is, the assailant either desires the victim’s
death, or knows to a substantial certainty that the victim’s death will
occur.’ †( ADDIN BA xc <@cs> xl 46 s
HPIZAX000003 xhfl Rep xpl 1 l "
Cal.4th 1186, 1217" People
v. Houston (2012) 54 Cal.4th 1186, 1217.) Intent to kill may be inferred from
defendant’s acts and the circumstances of the offense. ( ADDIN BA xc <@cs> xl 42 s
HPIZAX000004 xhfl Rep xpl 1 l "
Cal.4th 733, 741" People
v. Smith (2005) 37 Cal.4th 733, 741 ( ADDIN BA xc <@$cs> xl 5 s
HPIZAX000004 xpl 2 Smith).) “No minimal period of time for reflection had
to be shown in order to establish defendant’s criminal state of mind
. . . .†( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id. at
p. 743.) Even if defendant’s act
was done “ ‘without advance consideration,’ †a jury may infer from
the totality of the circumstances that the defendant acted with express malice
toward the victim. ( ADDIN BA xc <@$id> xl 18 s ID
xhfl Rep xpl 1 Id. at
pp. 743-744.)
Defendant claims there was no
evidence she knew Vilaysouk was in Saetuern’s car or that she saw Vilaysouk in
the dirt lot or of planning or preparation to demonstrate an intent to
kill. Defendant also argues there was
insufficient evidence that her act of driving towards Vilaysouk was
purposeful. She relies on her own
testimony that she lost control and accidentally stepped on the gas rather than
the brakes.
There is evidence that defendant
harbored the specific intent to kill Vilaysouk, a woman she knew and who was
running in the dirt lot, and committed a direct act towards commission of that
goal. The evidence reflects that
defendant aimed her SUV at Vilaysouk.
Again, “[n]o minimal period of time for reflection had to be shown in
order to establish defendant’s criminal state of mind
. . . .†( ADDIN BA xc <@$cs> xl 34 s
HPIZAX000004 xhfl Rep xpl 1 Smith, supra, 37 Cal.4th
towards Vilaysouk, making a “hard left†towards her, hit her, and strike the
brick wall, ejecting Vilaysouk away from the brick wall. There were no skid marks in the dirt,
reflecting that defendant did not apply the brakes prior to hitting Vilaysouk,
and the SUV hit the wall at a direct angle, reflecting that defendant did not
try to avoid hitting Vilaysouk.
Defendant’s act of using her SUV to hit Vilaysouk who was running away
from defendant was preceded by her conduct of chasing and ramming Saetuern and
Vilaysouk in Saetuern’s car, causing Saetuern’s car to spin out and crash into
the chain link fence. Defendant
testified that she followed “them,†that “they all fleed [sic]†when the car
spun out, and that Vilaysouk “ended up running with him.†She admitted seeing both Saetuern and
Vilaysouk in Saetuern’s car that night.
Even after hitting Vilaysouk and the brick wall with her SUV, defendant
continued to give chase on foot, following Vilaysouk to the restaurant where
defendant threatened to kill Vilaysouk.
That the jury acquitted defendant of criminal threats is of no
assistance to defendant. Employees
removed defendant from the restaurant so there was no immediacy to defendant’s
threat. It is
evidence, however, of defendant’s jealous rage which
led to her criminal acts, a rage that did not subside even when defendant hit
Vilaysouk and crashed into the brick wall.
Based on the totality of the circumstances,
the jury could reasonably conclude that defendant intended to kill Vilaysouk
and intentionally drove her SUV towards Vilaysouk.
II
Defendant also challenges the
evidence supporting her conviction for assault upon Vilaysouk with a deadly
weapon, to wit, her SUV, in the dirt field (count two). We conclude sufficient evidence supports her
conviction.
“The mental element for the assault
charge is that ‘assault does not require a specific intent to cause injury or a
subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional
act and actual knowledge of those facts sufficient to establish that the act by
its nature will probably and directly result in the application of physical
force against another.’ ( ADDIN BA xc <@cs> xl 45 s
HPIZAX000005 xhfl Rep xpl 1 l "
Cal.4th 779, 790" People
v. Williams (2001) 26 Cal.4th 779, 790.) ‘The mens rea [for assault] is established
upon proof the defendant willfully committed an act that by its nature will
probably and directly result in injury to another, i.e., a battery. Although the defendant must intentionally
engage in conduct that will likely produce injurious consequences, the
prosecution need not prove a specific intent to inflict a particular harm. [Citation.]
The evidence must only demonstrate that the defendant willfully or
purposefully attempted a “violent injury†or “the least touching,†i.e., “any
wrongful act committed by means of physical force against the person of
another.†[Citation.] In other words, “[t]he use of the described
force is what counts, not the intent with which same is employed.†[Citation.]
Because the offensive or dangerous character of the defendant’s conduct,
by virtue of its nature, contemplates such injury, a general criminal intent to
commit the act suffices to establish the requisite mental state. [Citation.]’
(
ADDIN BA xc <@cs> xl 50 s HPIZAX000006 xhfl Rep xpl 1 l "People v. Colantuono (1994)
HPIZAX000007 xhfl Rep xpl 1 l "
Cal.App.4th 101, 108-109" People v. Golde (2008) 163 Cal.App.4th 101, 108-109, fn.
omitted (
ADDIN BA xc <@$cs> xl 5 s HPIZAX000007 xpl 2 Golde).)
Based on Nunez’s observations of
defendant’s act of accelerating her SUV and making a “hard left†towards
Vilaysouk, hitting her and crashing straight into the brick wall, and the
officer’s observations of no skid marks in the dirt field and a direct angle of
impact with the wall, the evidence supports defendant’s conviction. Defendant “willfully committed an act that by
its nature will probably and directly result in injury to another, i.e., a
battery.†( ADDIN BA xc <@$cs> xl 48 s
HPIZAX000006 xhfl Rep xpl 1 People v. Colantuono (1994)
7 Cal.4th at p. 214; ADDIN
BA xc <@$cs> xl 39 s HPIZAX000007 xhfl Rep xpl 1 Golde,
supra, 163 Cal.App.4th at p. 108.)
Relying on her own testimony that
she lost control of her SUV and did not see Vilaysouk, defendant claims that
she did not purposefully drive her SUV towards Vilaysouk. Defendant is essentially asking this court to
reinterpret and reweigh the evidence which is not our standard of review. The evidence discussed previously is more
than sufficient to support defendant’s conviction for assault with a deadly
weapon, to wit, her SUV.
III
The trial court imposed the midterm
of three years for assault with a deadly weapon (count two) to run concurrent
with the low term of five years imposed for attempted murder (count one). Defendant contends and the People concede
that the acts in counts one and two constituted an indivisible course of
conduct, requiring a stay on the sentence imposed for count two. We agree and will order the judgment modified
accordingly.
The People argued to the jury that
counts one and two involved defendant’s conduct of driving towards Vilaysouk in
the dirt lot. At sentencing, the trial
court imposed a concurrent term for count two, finding the crimes occurred in a
continuous course of conduct.
Defendant’s attempt to murder Vilaysouk in the dirt field (count one)
and defendant’s assault of Vilaysouk with defendant’s SUV in the dirt field
(count two) constituted an indivisible course of conduct incident to a single
criminal intent and objective - the assault offense was committed as the means
of perpetrating the attempted murder. ADDIN
BA xc <@osdv> xl 11 s HPIZAX000013 l "Section 654" Section 654 requires the sentence for
the assault offense to be stayed. ( ADDIN BA xc <@cs> xl 43 s
HPIZAX000009 xhfl Rep xpl 1 l "
Cal.4th 290, 294" People
v. Hester (2000) 22 Cal.4th 290, 294; ADDIN
BA xc <@cs> xl 54 s HPIZAX000010 xhfl Rep xpl 1 l "Neal v. State of California (1960)
disapproved on another point in ADDIN
BA xc <@cs> xl 38 s HPIZAX000011 xhfl Rep xpl 1 l "People v. Correa (2012)
We also note that the abstract of
judgment erroneously reflects that the low term was imposed for counts two and
six. The trial court imposed
midterms. We will order the abstract
corrected accordingly.
DISPOSITION
The judgment is modified, staying
the sentence imposed for count two, assault with a deadly weapon. The trial court is directed to prepare an
amended abstract of judgment accordingly as well as to correct the abstract to
reflect a midterm sentence on counts two (now stayed) and six (still
concurrent) and to forward a certified copy to the
of Corrections and Rehabilitation. As
modified, the judgment is affirmed.
BLEASE , Acting
P. J.
We concur:
NICHOLSON , J.
MAURO , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Penal Code.
name="_ftn2" title="">[2] Saetuern recanted at trial.
