Filed 10/29/13 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                         G047341

         v.                                                            (Super. Ct. No. 11WF0913)

RICHARD VU NGUYEN,                                                     OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, James
Edward Rogan, Judge. Affirmed.
                   Nancy S. Brandt, 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, Scott Taylor and Eric A.
Swenson, Deputy Attorneys General, for Plaintiff and Respondent.


                                          *                  *                  *
                A jury convicted defendant, Richard Vu Nguyen, of felony dependent adult
abuse (Pen. Code, § 368, subd. (b)(1); all further statutory references are to this code).
He was sentenced to two years in prison and assessed $240 in both restitution and parole
revocation restitution fines.
                Defendant contends there was insufficient evidence to prove dependent
adult abuse, and in the alternative, the abuse amounted to a misdemeanor rather than a
felony. In addition, he argues the court‟s assessment of the $240 restitution fines violated
ex post facto principles and should be reduced to $200 each. We conclude there was
sufficient evidence dependent adult abuse occurred and that such abuse amounted to a
felony. Furthermore, defendant‟s ex post facto claim was waived when he failed to
object in the trial court. Accordingly, we affirm the judgment.


                                          FACTS


                Loan Do (Loan) is severely impaired and suffers from severe Down
syndrome, leaving her unable to care for herself. Her primary form of communication is
through grunting noises. At the time of the incident, Loan lived with her father Thuc Do
(Thuc), her sister Mai Do (Mai), Mai‟s nephew Huy Nguyen (Huy) ,1 and defendant.
Mai, Loan‟s primary caretaker, is defendant‟s girlfriend.
                When defendant moved into the residence, both Huy and a longtime family
friend, Kenneth Griffith, noticed Loan‟s demeanor changed. After Griffith witnessed a
suspicious incident between Loan and defendant in which he heard Loan screaming and
crying followed by defendant running from her room, he and Huy installed a “nanny
cam” in Loan‟s bedroom.




       1   No relation to defendant.

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              In April 2011, Huy heard Loan make a “frightening scream” while in her
bedroom, which he described as different from her “daily screams.” Upon investigating
Huy found Thuc arguing with defendant outside of Loan‟s room. Thuc was demanding
to know “why [his] daughter was screaming,” and “what [defendant was] doing in that
area.” Suspicious, Huy reviewed the video recording to check for any wrongdoing. Huy
and a police officer later testified the recording showed defendant running into Loan‟s
bedroom, kicking her in the head causing her to fall backwards, and then running back
out.
              Later that same day, Huy and Thuc checked on Loan once again after
hearing her crying and found her in the corner of the room, teary eyed, and surrounded by
shoes. The video recording from just prior shows a series of shoes being thrown into
Loan‟s room in her direction. While the person throwing the shoes is outside the
camera‟s field of view and thus unidentifiable, defendant can be seen walking into the
room soon after the shoes had been thrown.
              Shortly thereafter, defendant was arrested and charged with dependent adult
abuse. In an interview with police defendant was asked if he remembered kicking Loan,
to which he answered, “I don‟t really remember. I kicked her[;] I tried to get her to shut
up or something.” He also stated in the interview he “used [his] foot to get her to shut
up,” and he may have kicked her because he was “drunk” or “mad because of [Thuc]
yelling at [him] all the time.”


                                      DISCUSSION


1. Substantial Evidence
              Defendant argues there was insufficient evidence to support his conviction
for dependent adult abuse. Or in the alternative, the dependent adult abuse did not rise to
the level of a felony, and instead should be deemed a misdemeanor.

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              When evaluating a claim for insufficient evidence we are required to accept
all evidence which supports the successful party, disregard the conflicting evidence, and
draw all reasonable inferences to uphold the verdict. (People v. Lopez (2013) 56 Cal.4th
1028, 1069.) Substantial evidence may consist of circumstantial evidence as well as
direct evidence. (Ibid.) We may reverse for lack of substantial evidence only if “„“upon
no hypothesis whatever is there sufficient substantial evidence to support”‟” the
conviction. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)


              a. Dependent Adult Abuse
              Dependent adult abuse occurs if a person “willfully causes or permits any
elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental
suffering.” (§ 368, subd. (b)(1).)
              Defendant‟s primary argument is there is no substantial evidence to
conclude he willfully inflicted unjustifiable physical pain or mental suffering on Loan.
More specifically, he claims the kicking incident recorded on the “nanny cam” was
insufficient to prove his guilt because he did not actually kick Loan and because there
was no evidence she suffered any physical or mental pain from the incident. We
disagree.
              Defendant‟s contention that he never actually kicked Loan in the head is a
meritless argument for purposes of an insufficient evidence appeal. During the police
interview defendant claimed he could not remember if he had kicked Loan or not, but
then went on to explain why he had kicked her, saying he “used [his] foot to get her to
shut up” and “[he] kicked her[; he] tried to get her to shut up or something.” Further, the
jurors were able to watch the video for themselves and draw the reasonable inference
from it. This court “must accept logical inferences that the jury might have drawn from
the circumstantial evidence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 396.)



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The logical inference from defendant‟s admissions and the video recording is that
defendant did actually kick Loan in the head.
              Defendant argues Loan‟s reaction to the alleged kick as well as the lack of
visible injuries on her shows he never actually kicked her. This amounts to nothing more
than contradictory evidence, which we are not in a position to reweigh. (People v. Xiong
(2013) 215 Cal.App.4th 1259, 1268.) Consequently, we are required to accept the jury‟s
inference that defendant did kick Loan in the head, leaving the sole question as to
whether there was sufficient evidence that such a kick caused Loan unjustifiable physical
or mental pain. (Ibid.)
              While Loan may be unable to communicate, making it difficult to prove or
quantify her suffering, Huy testified stating the scream Loan let out just after the kicking
incident was “frightening” and different from her daily screams. It was reasonable for
the jury to infer being kicked in the head would result in physical or mental anguish to
Loan.
              Finally, the infliction of physical pain or mental suffering is considered
unjustifiable “when it is not warranted by the circumstances.” (People v. Whitehurst
(1992) 9 Cal.App.4th 1045, 1050.) Defendant stated that he kicked Loan “to get her to
shut up or something.” The involuntary noises of a mentally disabled person do not
justify kicking her in the head. Accordingly, there was sufficient evidence that defendant
kicked Loan, that she suffered mental or physical pain from the kick, and that the kick
was unjustified.


              b. Felony vs. Misdemeanor
              Defendant argues in the alternative the jury erred in deeming the dependent
adult abuse a felony rather than a misdemeanor. We are not persuaded.
              Dependent adult abuse amounts to a felony when the abuse takes place
under circumstances or conditions likely to produce great bodily harm. (§ 368, subd.

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(b)(1).) Should the abuse occur under circumstances or conditions unlikely to produce
great bodily harm the crime is deemed a misdemeanor. (§ 368, subd. (c).) Moreover,
courts have held there is no requirement the victim actually suffer great bodily injury.
(People v. Cortes (1999) 71 Cal.App.4th 62, 80.)
              While defendant maintains Loan suffered no great bodily injury, he
concedes we must consider not just the actual injury sustained, but also on the likelihood
the abuse could have caused great bodily injury. In determining the likelihood of great
bodily injury, a jury is permitted to look at not just the force or nature of the abuse
inflicted, but at the surrounding circumstances as well. (People v. Racy (2007) 148
Cal.App.4th 1327, 1333.) These include: “(1) the characteristics of the victim and the
defendant, (2) the characteristics of the location where the abuse took place, (3) the
potential response or resistance by the victim to the abuse, (4) any injuries actually
inflicted, (5) any pain sustained by the victim, and (6) the nature of and amount of force
used by the defendant.” (People v. Clark (2011) 201 Cal.App.4th 235, 245, fn. omitted.)
              Defendant‟s entire argument is predicated upon the fact he never actually
struck Loan but instead only made a “stomping” motion in her vicinity. As previously
discussed, it was reasonable for the jury to determine that what defendant describes as a
“stomping” motion was in fact a kick to Loan‟s head. Defendant‟s description of the
motion as a “stomp” gives insight into the velocity and forcefulness of the act. One
rarely lightly stomps with hopes to intimidate someone into being quiet. Certainly being
kicked in the head with a stomping motion by an adult male would be likely to inflict
great bodily injury on nearly anyone, much less a four-foot-tall, 75-pound woman such as
Loan.
              Moreover, had the jury concluded, as defendant claims, that he did not
strike Loan, but instead only used his foot to frighten her into being quiet, it could still
find those circumstances likely to produce great bodily injury. There is no requirement
for actual injury to occur, but instead only a requirement that the incident be likely to

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produce great bodily harm. (§ 368, subd. (b)(1); Roman v. Superior Court (2003) 113
Cal.App.4th 27, 35.)
              In People v. Wilson (2006) 138 Cal.App.4th 1197, the court found a
mother‟s intentional hitting of a wall next to her child‟s head was likely to produce great
bodily injury. In reaching this conclusion, the court pointed to the size disparity between
the mother and her son as well as the close proximity between where she hit the wall and
her son‟s head. (Id. at p. 1205.) At issue in Wilson was section 273a, felony child abuse,
rather than dependent adult abuse under section 368. (People v. Wilson, supra, 138
Cal.App.4th at p. 1205.) But the statutory language describing the type of abuse that
amounts to a felony in section 273a is identical to that of section 368. Accordingly, our
Supreme Court has held it is appropriate to rely on decisions interpreting section 273a in
addressing issues concerning the scope of section 368. (People v. Heitzman (1994) 9
Cal.4th 189, 204-205.)
              If it was determined defendant never actually struck Loan, the facts mirror
those in Wilson, and thus still justify the jury‟s finding. The victim in Wilson was a
young boy, drastically smaller in stature to the assailant, his mother. Loan is a four-foot-
tall, 75-pound woman, and while we do not know the size of defendant it is reasonable to
conclude an adult male is significantly larger, resulting in a similar size disparity between
victim and assailant. Additionally, as was the case in Wilson where the victim was never
physically struck but had a broom strike close to his head, so too was the stomping
motion close in proximity to Loan‟s head. Accordingly, even if defendant did not kick
Loan, there was enough circumstantial evidence to warrant the jury‟s finding the incident
was likely to produce great bodily harm.
              We reject defendant‟s reliance upon People v. Racy, supra, 148
Cal.App.4th 1327. The issue in Racy was the trial court‟s refusal to give jury instructions
regarding misdemeanor dependent adult abuse. In contrast, the jurors here were
instructed with the misdemeanor dependent adult abuse instructions. Therefore, we will

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not disturb the finding that the dependent adult abuse amounted to a felony rather than a
misdemeanor.


2. Restitution Fines
              Defendant argues the trial court‟s assessment of $240 restitution fines
violated ex post facto principles and thus should be reduced to the minimum fines the
statute authorized at the time the crime was committed, $200. Defendant did not object
to the fines at the time of sentencing.
              An unauthorized sentence may be corrected at any time whether or not
there was an objection in the trial court. (People v. Smith (2001) 24 Cal.4th 849, 854.)
But “„[t]he unauthorized sentence exception is “a narrow exception” to the waiver
doctrine that normally applies where the sentence “could not lawfully be imposed under
any circumstance in the particular case.”‟” (People v. Turrin (2009) 176 Cal.App.4th
1200, 1205.) We conclude the sentence was authorized and thus defendant‟s argument is
forfeited on appeal.
              “The restitution fine shall be set at the discretion of the court and
commensurate with the seriousness of the offense. If the person is convicted of a felony,
the fine shall not be less than two hundred forty dollars ($240) starting on January 1,
2012.” (§ 1202.4, subd. (b)(1), italics added.) At the time defendant committed the
crime the statute provided for a $200 minimum fine. (Former § 1202.4, subd. (b)(1).)
              Defendant argues that the $240 fines demonstrate the trial court improperly
relied on the newer version of the statute. There is no evidence in the record to support
this claim. But even if the court did rely on the amended statute, assessing a fine $40
above the minimum at the time the crime was committed was within the court‟s
discretion. In other words, regardless of which version of the statute the trial court
applied, the sentence was proper within the bounds of the applicable section 1202.4.
Thus, it was not a sentence which “„“could not lawfully be imposed under any

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circumstance in the particular case.”‟” (People v. Turrin, supra, 176 Cal.App.4th at p.
1205.) Therefore the assessment of the $240 was not an unauthorized sentence and
cannot be reviewed on appeal absent an objection in the trial court. (Ibid.)
               Furthermore, even on the merits, we still find no error. In support of his
argument defendant cites a trio of cases, all of which were concerned with different ex
post facto issues than the one presently before us. They deal not with the increase in the
minimum punishment, but instead with an increase in the maximum punishment. (Miller
v. Florida2 (1987) 482 U.S. 423; Weaver v. Graham (1981) 450 U.S. 24; Lindsey v. State
of Washington (1937) 301 U.S. 397.) These do not assist defendant.
               The ex post facto clauses of the state and federal Constitutions prohibit the
imposition of increased punishment after the commission of a crime. (U.S. Const., art. I,
§ 10; Cal. Const., art. I, § 9.) Accordingly, “one of the primary purposes” of the ex post
facto clause is “to prevent unforeseeable punishment.” (People v. Snook (1997) 16
Cal.4th 1210, 1221.) For this reason an increase of the minimum fine is fundamentally
different than an increase in the maximum fine. An increase in the maximum punishment
makes possible a sentence that was unforeseeable at the time the crime was committed.
But an increase in the minimum punishment, as long as it remains below the previously
established maximum, still leaves the range of punishment in which any sentence within
its bounds was foreseeable at the time the crime was committed. Therefore, regardless of
whether the argument was forfeited, we find no merit in defendant‟s argument.




       2   Defendant incorrectly cites to this case as People v. Miller.

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                                DISPOSITION


          The judgment is affirmed.




                                           THOMPSON, J.

WE CONCUR:



MOORE, ACTING P. J.



ARONSON, J.




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