Filed 1/15/16 P. v. Duong 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050528

         v.                                                            (Super. Ct. No. 13WF1379)

CUONG HONG DUONG,                                                      OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Sheila F.
Hanson, Judge. Affirmed.
                   Athena Shudde, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Minh
U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
              Cuong Hong Duong appeals from a judgment after a jury convicted him of
attempted murder, robbery, and false imprisonment by violence. Relying on Penal Code
section 654, Duong argues the trial court erred by failing to strike the punishment for
robbery. We disagree and affirm the judgment.
                                          FACTS
              Namju Choi worked as a prostitute at a hotel, and Duong was a client.
During their appointment, Duong entered her room, looked around, and asked to use the
bathroom. He laid down on the bed where Choi could see a folded green belt inside his
pocket. Choi asked Duong to pay her $120 upfront because it was his first appointment
with her. Duong stood up, patted his clothes, and checked his pocket. Duong told her
that he left his money in his car, and he left the room. The surveillance footage showed
the following: Duong left the room, rode the elevator down to the ground floor, and
immediately rode the elevator back up to Choi’s floor; and he reached for the belt in his
pocket and hid it behind his back as he approached her room.
              As Choi took off her undergarments, Duong knocked on the door. Choi
opened the door and when she walked away from him, Duong came from behind and put
his belt around her neck. He wrapped the belt around Choi’s neck a second time and
pulled. Choi could only touch the outside of the belt because Duong had it pulled so
tightly around her neck. Duong was so strong she could not struggle. Although Choi
told Duong that she would give him all her money, he continued to strangle her until she
became unconscious. When Choi regained consciousness, she was lying on the bed with
a towel over her face. Choi crawled onto the floor and towards her luggage where she
found her cell phone, but she was so startled, she could not make a telephone call. She
looked through her luggage and noticed three of her credit cards and approximately
$1,000 was missing. Choi went to the bathroom to check her face, which was “black,”



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and she saw blood in her nose and ears. Choi eventually obtained help when a friend
called her.
              An information charged Duong with attempted murder (Pen. Code, §§ 664,
subd. (a), 187, subd. (a), all further statutory references are to the Pen. Code) (count 1),
first degree robbery (§§ 211, 212.5, subd. (a)) (count 2), and false imprisonment by
violence (§§ 236, 237, subd. (a)) (count 3). As to counts 1, 2, and 3, the information
alleged Duong personally used a deadly weapon (§ 12022, subd. (b)(1)), and personally
inflicted great bodily injury (§ 12022.7, subd. (a)).
              The jury convicted him of all the counts and found true all the allegations.
The trial court sentenced Duong as follows: (1) count 1-life with the possibility of parole
plus one year for personal use of a deadly weapon and three years for personal infliction
of great bodily injury; and (2) count 2-middle term of four years.
              Over defense counsel’s objection, and after “struggl[ing]” with the issue,
the trial court declined Duong’s invitation to stay the sentence on count 2 because Duong
had multiple objectives, a deliberate intent to murder and a separate and deliberate intent
to rob. The court explained Duong had the belt wrapped around Choi’s neck the entire
time and could have effectuated the robbery at any time but instead he choked her until
she was unconscious. The court opined Duong’s “means to achieve [his] objective [was]
so extreme” it was not incidental. Pursuant to section 654, the court imposed and stayed
the sentences on count 2’s accompanying enhancements and count 3 and its
accompanying enhancements.
                                       DISCUSSION
              Relying on section 654, Duong argues the trial court erred by failing to stay
the sentence on count 2 because the attempted murder and robbery were one continuous
course of conduct and he did not possess separate criminal objectives. Not so.




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               Section 654, subdivision (a), provides, in pertinent part, “[a]n 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.” Section 654 is intended “to insure that a defendant’s punishment will be
commensurate with his [or her] culpability.” (People v. Perez (1979) 23 Cal.3d 545,
552.) The statute bars multiple punishment for both a single act that violates more than
one criminal statute and multiple acts, where those acts comprise an indivisible course of
conduct incident to a single criminal objective and intent. (People v. Latimer (1993)
5 Cal.4th 1203, 1208; Neal v. State of California (1960) 55 Cal.2d 11, 19, overruled on
other grounds in People v. Correa (2012) 54 Cal.4th 331, 337-338.) Conversely, where a
defendant commits multiple criminal offenses during a single course of conduct, he or
she may be separately punished for each offense he or she committed pursuant to a
separate intent and objective. (People v. Beamon (1973) 8 Cal.3d 625, 637-639.)
               Whether multiple convictions were part of an indivisible transaction is
primarily a question of fact for the trial court. (People v. Coleman (1989) 48 Cal.3d 112,
162; People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) We review a challenge under
section 654 for substantial evidence to support the trial court’s determination. (People v.
Jones (2002) 103 Cal.App.4th 1139, 1143 [trial court’s findings not reversed if any
substantial evidence to support them].) People v. Nguyen (1988) 204 Cal.App.3d 181
(Nguyen), and People v. Cleveland (2001) 87 Cal.App.4th 263 (Cleveland), are
instructive.
               In Nguyen, supra, 204 Cal.App.3d at page 190, defendant and his partner
robbed a market and defendant’s partner took the store clerk to the backroom. While
defendant was at the store’s cash register, his partner took the store clerk’s valuables and
forced him to lie on the floor. Once the store clerk was on the ground, defendant’s
partner shot him. (Ibid.) The Nguyen court held that under section 654, the crimes of

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robbery and attempted murder should be sentenced separately: “This act [of attempted
murder] constituted an example of gratuitous violence against a helpless and unresisting


victim which has traditionally been viewed as not ‘incidental’ to robbery for purposes
of . . . section 654. [Citations.]” (Nguyen, supra, 204 Cal.App.3d at p 190.) The court
explained: “[A]t some point the means to achieve an objective may become so extreme
they can no longer be termed ‘incidental’ and must be considered to express a different
and a more sinister goal than mere successful commission of the original crime.” (Id. at
p. 191.) The court concluded: “It is one thing to commit a criminal act in order to
accomplish another; . . . section 654 applies there. But that section cannot, and should
not, be stretched to cover gratuitous violence or other criminal acts far beyond those
reasonably necessary to accomplish the original offense.” (Ibid.)
              In Cleveland, supra, 87 Cal.App.4th at pages 266-267, defendant was angry
because an elderly man refused to give him money. He entered the man’s apartment and
beat him with a large piece of wood until the man became unconscious. A neighbor saw
defendant walk out with the man’s Walkman radio. The jury convicted defendant of
attempted murder, robbery, and assault with a deadly weapon. (Ibid.) The Cleveland
court held separate sentences could be imposed for the robbery and attempted murder of
the same victim, quoting Nguyen with approval. (Cleveland, supra, 87 Cal.App.4th at
p. 272, fn. omitted.) The court reasoned: “We do not agree with [defendant] that both
crimes were committed pursuant to the intent to rob [the victim] . . . . As the trial court
observed, the amount of force used in [robbing the victim] was far more than necessary to
achieve one objective. [Defendant] repeatedly hit his 66-year-old feeble, unresisting
victim on the head and body with a two-by-four board. [Defendant] struck [the victim]
until the board broke and left him unconscious. While it is true that attempted murder
can, under some circumstances, constitute the ‘force’ necessary to commit a robbery,
here, it was not the necessary force.” (Id. at pp. 271-272.)

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              Here, like in Nguyen and Cleveland, substantial evidence supported the trial
court’s conclusion Duong’s strangulation of Choi exceeded that necessary to effectuate
the robbery. After Doung wrapped the belt around Choi’s neck and pulled so tightly
Choi could only touch the outside of the belt, Choi told Duong that she would give him
all her money. Had Duong ceased strangling Choi at this point and successfully
completed the robbery his argument would be stronger. Yet Duong continued to strangle
Choi until she was unconscious. There was no evidence Choi resisted or struggled.
Needless to say, the natural reaction to being choked is to reach towards the neck area.
Contrary to Duong’s assertion otherwise, Choi did not pull the belt away from her neck.
Choi testified Duong strangled her with such force and strength she could not struggle.
Similar to Nguyen and Cleveland, Duong’s conduct in continuing to strangle Choi, an act
of gratuitous violence against a helpless victim, was so extreme the criminal objectives in
committing the attempted murder were different than committing the robbery.
              Duong’s reliance on People v. Nunez (2012) 210 Cal.App.4th 625, is
misplaced. In that case, defendant used a hammer to commit a carjacking of a formidable
victim. (Id. at p. 628.) In agreeing with defendant section 654 prohibited multiple
punishments for assault with a deadly weapon and carjacking, the Nunez court explained
the hammer use and taking of the car were “contemporaneous if not simultaneous” and
the hammer use “was not a ‘gratuitous act of violence’ or an ‘afterthought.’” (Id. at
p. 630.) As we explain above, Duong’s continued strangulation of Choi, a helpless
victim, after she agreed to give him all her money was a gratuitous act of violence
unnecessary for completion of the robbery. Therefore, we conclude the trial court did not
err in failing to stay execution of the sentence for count 2 pursuant to section 654.




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                                  DISPOSITION
            The judgment is affirmed.




                                            O’LEARY, P. J.

WE CONCUR:



RYLAARSDAM, J.



MOORE, J.




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