People v. Nguyen CA4/3 ( 2014 )

Filed 4/11/14 P. v. Nguyen CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G048348
v. (Super. Ct. No. 11WF2920)
DAVID KHOA NGUYEN, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, James
Edward Rogan, Judge. Affirmed.
Melanie K. Dorian, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
David Khoa Nguyen appeals from a judgment after a jury convicted him of
possession of methamphetamine for sale, furnishing methamphetamine, and maintaining
a place for selling or using methamphetamine. Nguyen argues insufficient evidence
supports his conviction for furnishing methamphetamine and the trial court’s sentence
violated Penal Code section 654. We disagree and affirm the judgment.
FACTS
Detectives Robert Cortes, Donald Farmer, and Pat Estes conducted a
multi-day covert surveillance operation of Nguyen’s home at 13212 Partridge in Garden
Grove situated at the end of a cul-de-sac. All were members of the special investigations
unit and experts in narcotics investigations.
On December 7, 2011, Estes, the point person, saw six different vehicles
arrive at the residence. One of the vehicles was a silver Honda Civic, driven by
Kosal Kim, a man who had been the subject of previous surveillances and who officers
knew from his booking photographs. Kim went inside the house.
On December 8, 2011, Farmer acted as the point person on this day. At
about 12:30 p.m., a gray Toyota Tundra arrived at the house. The occupant of the truck
went inside for about 20 minutes and then drove away. About two and one-half hours
later, a white GMC truck drove into the cul-de-sac, turned, and stopped at the end of the
cul-de-sac, near where Farmer was located. A female Hispanic, later identified as
Patricia Chavez, Nguyen’s girlfriend, exited the house, walked down the street, and got
into the truck. The male driver handed Chavez what appeared to be money, and she
handed the man a small object. Chavez got out of the truck, walked home, retrieved the
mail from the mailbox, and went inside. One hour later, a white Toyota Camry arrived at
the residence. A female Hispanic got out of the car, went inside for a short time, came
out of the house, and drove away. About one and one-half hours later, a Ford Explorer
(the SUV) arrived at the house. Several people got out of the SUV and went inside the
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residence. A little later, a male Hispanic left the house, got into the SUV, and drove to a
nearby smoke shop. The SUV returned to the residence. One hour later, a silver
Honda Civic arrived at the residence. Kim got out of the car and entered the residence.
About 15 minutes later, Kim exited the residence and walked to a Toyota Camry that had
arrived. Kim and the driver walked into the residence and back to the car where Kim
spoke with someone in the car’s backseat. Kim returned to the residence. About
8:30 p.m., a dark colored BMW parked on the driveway. A male Hispanic exited the
house and walked to the driver’s side of the BMW. After they spoke, the man went
inside the residence, and the BMW drove away.
On December 9, 2011, Farmer again was the point person. About
1:50 p.m., Kim arrived in the silver Honda Civic and went inside with a package. He left
the residence about five minutes later; he was not carrying anything. About 40 minutes
later, the same gray Toyota Tundra as the day before arrived at the residence. The driver
went inside for a few minutes, came outside, and drove away. Two hours later, the same
SUV from the day before arrived at the residence. Several people again went inside the
residence and left about one hour later. While the occupants in the SUV were inside the
residence, a silver Ford Mustang arrived at the residence. The driver went inside for a
few minutes, came out, and drove away. Estes saw a green Chevrolet Impala arrive at the
residence, its occupants go inside for a few minutes, leave the house, and drive away.1
On December 13, 2011, at about 5:45 p.m., it was very dark in the front of
the residence. Estes saw someone leave the residence and get into a white Toyota
Camry. Officers, including Estes, followed the car. Estes could not see anyone other
than the car’s driver. Officers followed the car to a hardware store where Estes saw
Nguyen get out of the back seat. Nguyen left the store and entered the car’s back seat.
Officers followed the car. The lights of the oncoming vehicles illuminated the Camry as
1 It is unclear from the record whether this occurred on December 9 or
December 10.
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officers pursued the car. Estes could only see the driver’s silhouette, and he believed
Nguyen was crouched down in the back seat. When officers stopped the car, Nguyen
was crouched down in the back seat. Officers found two methamphetamine pipes in the
car.
Cortes told Nguyen they had a search warrant to search his house, and
Nguyen said Chavez was home and he gave them a key. Officers transported Nguyen to
the police station.
Officers executed the search warrant at Nguyen’s residence. Officers found
Chavez and a home with only wood beams and no interior walls. On a table, officers
found a black Colt .45 replica handgun. In an area that appeared to be an office, officers
found a safe with a touch keypad. Chavez gave Estes a combination that did not unlock
the safe. Estes called the police station and obtained the combination from Nguyen.
Officers found the following in the safe: (1) a Ziploc bag containing $115 in cash; (2)
two Ziploc bags containing what was later determined to be methamphetamine; and
between 30 and 50 one-inch resealable plastic bags. One of the bags contained 6 grams
of methamphetamine and the other bag contained 5.5 grams of methamphetamine.
Officers also found a small Ziploc bag on the floor with what appeared to be .4 grams of
methamphetamine. In an area that appeared to be Nguyen’s room, officers found a small
plastic bag containing .4 grams of what appeared to be methamphetamine. Officers also
found a scale that appeared to be covered in a white residue. Finally, officers found
methamphetamine smoking pipes throughout the house.
After advising Nguyen of his rights pursuant to Miranda v. Arizona (1966)
384 U.S. 436, Cortes questioned him at the police station. We will provide the details of
the interview below.
An information charged Nguyen with possession for sale of a controlled
substance, methamphetamine (Health & Saf. Code, § 11378) (count 1), sale or
transportation of a controlled substance, methamphetamine (Health & Saf. Code,
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§ 11379, subd. (a)) (count 2), maintaining a place for selling or using controlled
substances, methamphetamine (Health & Saf. Code, § 11366) (count 3), and street
terrorism (Pen. Code, § 186.22, subd. (a)) (count 4). The information alleged Nguyen
committed these offenses on or about December 13, 2011. The information alleged
Nguyen was previously convicted of violating Health and Safety Code section 11378
(Pen. Code, § 1203.07, subd. (a)(11)), as to count 1. The information alleged he
committed counts 1, 2, and 3 for the benefit of a criminal street gang (Pen. Code,
§ 186.22, subd. (b)(1)). Finally, the information alleged he suffered two prior felony
Health and Safety Code convictions (Health & Saf. Code, § 11370.2, subd. (c)), and two
prior prison terms (§ 667.5, subd. (b)).
At trial, the prosecutor offered the following testimony. Farmer testified
concerning his background, training, and experience in narcotics investigations. He had
seen methamphetamine hundreds of times, made over 100 methamphetamine related
arrests, made in excess of 20 methamphetamine for sales related arrests, and participated
in over 100 surveillance operations. He had spoken with methamphetamine sellers about
how the drug is packaged and priced. He was familiar with the nature of hand-to-hand
drug sales. Farmer opined the residence in question was being used for drug sales based
on the vehicle and foot traffic.
Estes also testified concerning his background, training, and experience in
narcotics investigations. Estes detailed his training, including how narcotics are
packaged, concealed, and sold. Estes stated he had participated in over 500 narcotics
investigations, interviewed over 350 abusers and sellers, participated in over 100 narcotic
search warrants, and written over 30 narcotics search warrants. He explained the factors
relied on to determine whether a person sells methamphetamine are quantity, packaging,
pay/owe sheets, scales, handguns, and high vehicle and foot traffic. He opined people
who use narcotics possess generally one-half a gram to one gram because narcotics users
are usually unemployed, buy only what they can afford, and use the drug immediately.
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He added that if a person had more than one gram he would suspect the person sold
narcotics and he would look for other factors. He said a usable quantity of narcotics is
any amount that you can manipulate with your fingers.
Estes explained there are street dealers, mid-level dealers, and major drug
cartels. Street dealers usually possess one and one-half grams to 28 grams and on
average possess six or seven grams. Street dealers are not sophisticated and sell drugs
from their homes and are mobile. They usually use methamphetamine and and will use a
portion of their profit to purchase more methamphetamine. They also pool money from
other people to purchase a large quantity and distribute the methamphetamine among the
people. Some street level dealers use runners to distribute narcotics. Mid-level dealers
sell narcotics that are purer and have a direct connection with the drug cartels. Mid-level
dealers are more sophisticated; they have lookouts, use runners who move the narcotics,
and have lawyers on retainer. Major drug cartels are involved in the manufacture,
smuggling, and distribution of narcotics and are very sophisticated.
Estes stated the most common packaging on the street is small, resealable
baggies one inch square to one-half inch square. He opined users who are not sellers
would not possess multiple small resealable baggies. Based on his background, training,
experience, and surveillance, Estes opined the activity at the residence was consistent
with narcotics sales. He added the two large Ziploc bags of methamphetamine found in
the safe were “without a doubt” there to be sold.
On cross-examination, Estes agreed people trade money, sex, and work for
drugs. On redirect examination, he said street level sellers will often smoke
methamphetamine with the buyer. Estes said it was “very seldom” he encountered a
person who used two grams of methamphetamine a day.
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Cortes testified concerning his interview with Nguyen.2 Nguyen stated he
lived at the residence for three months. Nguyen admitted the safe and its contents were
his, and he claimed he used the plastic bags to put his methamphetamine in. Nguyen said
he allowed people to come to his home and smoke methamphetamine and this was
“possibly” the explanation for the heavy vehicle and foot traffic. He also admitted he
would “trade” methamphetamine. He “may have” used “runners” to purchase
methamphetamine for him. His employment consisted of doing “odd jobs” for people,
such as repairing their cellular telephones.
On cross-examination, Cortes testified that Nguyen repeatedly denied
selling methamphetamine. Nguyen claimed he used 3.5 grams of methamphetamine per
day. Defense counsel explored the topic of Nguyen “trading” methamphetamine. When
counsel inquired whether Nguyen said he performed work in exchange for
methamphetamine, Cortes replied, “No. That’s not what I meant.” Counsel asked,
“[Y]ou are saying that he told you he traded methamphetamine with other people?”
Cortes responded, “Yes.” He also admitted he and his friends would combine their
money and purchase methamphetamine together. On redirect examination, Cortes stated
that based on his training and experience, 3.5 grams of methamphetamine is not for
personal use, and he had never encountered anyone who claimed to use that much per
day.
Forensic scientist Bill Edinger testified for the prosecution. Pursuant to
established crime lab procedures, Edinger testified one of the four bags was determined
to be 4.859 grams of methamphetamine.
2 The interview was video and audio recorded. Cortes listened to the
interview twice before he testified.
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Detective Matthew McLeod testified as a gang expert for the prosecution
concerning Tiny Rascals criminal street gang and Nguyen’s active participation in the
gang. The parties stipulated that in 2008 and 2011, Nguyen was convicted of a felony
that was not a crime of violence and was not a gang crime. Nguyen rested on the state of
the evidence.
As relevant here to count 2, the jury instructions and the prosecutor’s
argument establish the basis for the offense was that Nguyen furnished
methamphetamine.3
The jury convicted Nguyen of counts 1, 2 (furnishing a controlled
substance-methamphetamine), and 3 but could not reach a verdict on count 4 or the street
terrorism enhancements. Pursuant to the prosecutor’s motion, the trial court dismissed
count 4, the street terrorism enhancements, and one of the prior prison enhancements.
Nguyen admitted he suffered the other prior prison term and two prior felony Health and
Safety Code convictions.
The trial court sentenced Nguyen to seven years in jail as follows: the
upper term of four years on count 2 and a consecutive term of three years for one of the
Health and Safety Code prior convictions. The court imposed concurrent upper term
sentences of three years on counts 1 and 3. The court struck the sentences on the
remaining prior Health and Safety Code conviction and the prior prison term allegation.
DISCUSSION
I. Sufficiency of the Evidence-Count 2
Nguyen argues insufficient evidence supports his conviction for count 2
because there was no evidence that on or about December 13, 2011, either he or anyone
on his behalf was furnishing narcotics. We disagree.
3 In prosecuting count 1, possession of methamphetamine for sale, the district
attorney focused on the methamphetamine officers found in the safe.
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“‘On appeal we review the whole record in the light most favorable to the
judgment to determine whether it discloses substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citations.] The standard of review is
the same in cases in which the People rely mainly on circumstantial evidence. [Citation.]
“Although it is the duty of the jury to acquit a defendant if it finds that circumstantial
evidence is susceptible of two interpretations, one of which suggests guilt and the other
innocence [citations], it is the jury, not the appellate court which must be convinced of
the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably
justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant a reversal of the judgment.”’ [Citations.]” [Citation.] ‘“Circumstantial evidence
may be sufficient to connect a defendant with the crime and to prove his guilt beyond a
reasonable doubt.’”’ [Citation.]” (People v. Abilez (2007) 41 Cal. 4th 472, 504 (Abilez).)
Health and Safety Code section 11379, subdivision (a), in relevant part
provides: “[E]very person who transports, imports into this state, sells, furnishes,
administers, or gives away, or offers to transport, import into this state, sell, furnish,
administer, or give away, or attempts to import into this state or transport any controlled
substance [as defined] . . . shall be punished by imprisonment . . . for a period of two,
three, or four years.” “Furnish” is defined as “to provide or supply with what is needed,
useful, or desirable.” (Webster’s 3d New Internat. Dict. (1981) p. 923.) The prosecutor
is not required to prove the offense occurred on the alleged date but rather that the
offense occurred reasonably close to the alleged date. (People v. Peyton (2009)
176 Cal. App. 4th 642, 660.)
Nguyen concedes a person may violate Health and Safety Code
section 11379 without selling narcotics (People v. Fritz (1970) 11 Cal. App. 3d 523, 526
[defendant gave drugs to undercover officer gratis]), and without directly dealing with
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buyer/user (People v. Taylor (1959) 52 Cal. 2d 91, 94 [defendant furnished drugs to buyer
through a third party]). He argues, however, there was no evidence that on December 7
through December 13 he furnished anyone with narcotics or that Chavez furnished
narcotics on his behalf. He relies on the facts officers never saw him until December 13,
and officers did not observe any hand-to-hand drug transactions on December 13. He
adds that the other evidence demonstrates the methamphetamine officers found was
strictly for his personal use. We disagree.
“The corpus delicti rule requires the prosecution to prove that ‘the charged
crime actually happened’ exclusive of the accused’s extrajudicial statements. [Citation.]
Only a ‘slight or prima facie showing, permitting the reasonable inference that a crime
was committed, is sufficient.’ [Citations.] Such evidence need not point to defendant as
the perpetrator. [Citation.]” (People v. Ray (1996) 13 Cal. 4th 313, 342.)
Here, Nguyen’s statements, the officers’ observations, and the expert
testimony provided evidence from which the jury could reasonably conclude Nguyen
provided and supplied methamphetamine in December 2011. Nguyen admitted he
allowed people to come to his house and use methamphetamine. Over the course of three
days, December 7, 8, and 9, officers observed approximately 17 vehicles arrive at
Nguyen’s home, most of which stayed for a very short period of time before leaving.
Estes testified some street-level dealers use runners to distribute narcotics.
On December 8, Farmer saw Chavez walk out of the house and get into a
white GMC truck that stopped at the end of the cul-de-sac. The male driver handed
Chavez what looked like money, and Chavez handed the man a small object. Estes stated
the most common packaging on the street is small, resealable baggies one inch square to
one-half inch sqaure. Officers found between 30 and 50 of this type of bag in the safe
that Nguyen admitted was his and to which he knew the combination. Nguyen admitted
he used runners, although he claimed it was to purchase drugs not furnish them. Contrary
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to Nguyen’s assertion otherwise, this evidence supports the conclusion Nguyen was
inside the home and sending Chavez out to furnish drugs to others.
Additionally, Estes testified street-level dealers combine money with other
people to purchase a large quantity and distribute the methamphetamine to the people.
Nguyen admitted to Cortes he did this. Nguyen also admitted he furnished
methamphetamine with others. Although it was initially unclear what Cortes meant by
traded, he clarified Nguyen told him that he traded methamphetamine with others. Based
on Nguyen’s statements, the heavy vehicle and foot traffic during the three days,
Chavez’s conduct on December 8, and the methamphetamine and drug paraphernalia
found in Nguyen’s home, it was certainly reasonable for the jury to conclude Nguyen
provided and supplied, i.e., furnished, others with methamphetamine. We decline
Nguyen’s invitation to reweigh the evidence and substitute our judgment for the jury’s
judgment to conclude he possessed the methamphetamine solely for personal use.
(Abilez, supra, 41 Cal.4th at p. 504.) Therefore, sufficient evidence supports Nguyen’s
conviction for count 2.
II. Penal Code section 654-Counts 1 & 2
Relying on Penal Code section 654, Nguyen contends the trial court erred
in imposing a concurrent three-year term on count 1. Again, we disagree.
Penal Code section 654 provides, in relevant part: “An act or omission that
is punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” The purpose of
the statute is “to prevent multiple punishment for a single act or omission, even though
that act or omission violates more than one statute and thus constitutes more than one
crime. Although the distinct crimes may be charged in separate counts and may result in
multiple verdicts of guilt, the trial court may impose sentence for only one offense—the
one carrying the highest punishment. [Citation.]” (People v. Liu (1996) 46 Cal. App. 4th
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1119, 1135, fn. omitted.) The section’s protection extends to cases in which a defendant
engages in a course of conduct that violates different statutes and comprises an
indivisible course of conduct punishable under separate statutes. (People v. Harrison
(1989) 48 Cal. 3d 321, 335.) “Multiple punishment is permissible if appellant entertained
multiple criminal objectives which were independent of and not merely incidental to each
other. [Citation.] A defendant’s criminal objective is ‘determined from all the
circumstances and is primarily a question of fact for the trial court, whose findings will
be upheld on appeal if there is any substantial evidence to support it.’ [Citation.]”
(People v. Braz (1997) 57 Cal. App. 4th 1, 10.)
Here, substantial evidence supports the trial court’s implicit finding Nguyen
entertained multiple criminal objectives. As we explain above, there was sufficient
evidence Nguyen furnished methamphetamine to others when Chavez delivered narcotics
to the man in the truck and when Nguyen admitted he “traded” methamphetamine
(count 2). Additionally, there was sufficient evidence Nguyen intended to sell the two
large bags of methamphetamine found in the safe because in addition to the narcotics,
officers found 30 to 50 small, resealable bags and cash (count 1).
Where, as here, each sale consumes only part of his inventory, Nguyen may
be punished separately for the possession of his unsold narcotics. (People v. Fusaro
(1971) 18 Cal. App. 3d 877, 894, disapproved on another ground in People v. Brigham
(1979) 25 Cal. 3d 283, 292; In re Adams (1975) 14 Cal. 3d 629, 633 [“if a person sells
only part of the narcotics he possesses, both the offenses of possession and sale may be
punished, since possession of the excess unsold narcotics was not necessary to the sale”];
People v. Goodall (1982) 131 Cal. App. 3d 129, 147.) The trial court therefore was not
required to stay Nguyen’s sentence on count 1.
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DISPOSITION
The judgment is affirmed.
O’LEARY, P. J.
WE CONCUR:
RYLAARSDAM, J.
MOORE, J.
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