Filed 12/17/15 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                         G050161

         v.                                                            (Super. Ct. No. 13WF3196)

SON HUU NGUYEN,                                                        OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, David A.
Hoffer, Judge. Affirmed.
                   James M. Crawford, for Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Stacy Tyler and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and
Respondent.
              A jury convicted Son Huu Nguyen of two counts of throwing a substance at
a vehicle with the intent to cause great bodily injury (Veh. Code, § 23110, subd. (b);
counts 1, 2), and one count of felony vandalism (Pen. Code, § 594, subd. (a)(1); count 3).
The court found true allegations Nguyen had two prior burglary convictions from
December 7, 1989, which are “strikes” within the meaning of the “Three Strikes” law,
and had served three prior prison terms. After dismissing the prior prison term
enhancements, the court imposed a total term of two years and eight months.
              Nguyen argues the trial court abused its discretion by admitting evidence of
uncharged misconduct (Evid. Code, § 1101, subd. (b)), and by denying his motion to
dismiss the prior strike allegations for sentencing purposes in the interest of justice (Pen.
Code, § 1385, subd. (a)). We reject both assertions and affirm the judgment.
                                          FACTS
The People’s Case
              In the early morning hours of September 9, 2013, Nguyen was issued a
citation for throwing a rock at Juan Michel’s truck. The incident occurred on Bolsa
Avenue, near the Ward Street intersection, in Westminster. As Michel waited for the
emergency responders, he saw Nguyen throw a rock at another truck and break a
window.
              On October 12, at about 5:00 p.m., Allen Serna was riding his motorcycle
on Bolsa Avenue near the Ward Street intersection when he saw “a male subject on the
sidewalk standing by his bicycle.” The male subject, later identified as Nguyen, made
eye contact with Serna and threw a palm-sized rock at Serna’s head. Serna turned his
face to avoid the rock, but it hit the back of his helmet and knocked a hole in the
fiberglass. Serna, shocked and incensed, pulled over to the curb, parked his motorcycle,
and walked toward Nguyen. Serna asked Nguyen what he was doing. Nguyen yelled
back in a foreign language and then rode away on his bicycle. A short time later, Serna
reported the incident to the Westminster Police Department.

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              The next afternoon, October 13, there was another rock-throwing incident
at the intersection of Bolsa Avenue and Ward Street, and Nguyen was again identified as
the perpetrator. This time, Nguyen threw a rock at Rogelio Martinez’s car as Martinez
drove by. The rock landed just below the open passenger window, narrowly missing
Martinez’s brother who was sitting in the passenger seat. Martinez stopped to inspect the
damage. His brother and another passenger followed and detained Nguyen until police
could arrive. The rock caused between $700 and $1,200 in damage to Martinez’s car.
Martinez testified he was sure he recognized Nguyen because Nguyen had been at the
same intersection several times during the preceding year. Martinez said Nguyen
frequently asked for money and yelled at cars on Bolsa Avenue.
The Defense
              Nguyen challenged the eyewitnesses’ identification of him as the
perpetrator of the October rock-throwing incidents. To that end, Nguyen called
Westminster Police Officer Derek Link. Link interviewed Serna at the scene on October
12. Serna told Link the suspect was wearing a blue sports jersey and he was riding a
bicycle. Serna said the man got off of his bicycle, and Serna felt something hard hit his
helmet. But Link also testified Serna did not tell him he had seen someone throw a rock
at him, or that he saw the rock coming toward him.
              Nguyen also called Westminster Police Officer Paul Walker. Walker
responded to the October 13 rock-throwing incident and interviewed Martinez at the
scene. Martinez described the suspect as male, with missing front teeth and a shaggy
beard, and wearing an oversized T-shirt. Three hours later, Walker contacted Nguyen.
Nguyen was bald, with short facial hair, and he had his teeth. Investigator Jorge Romero
also interviewed Martinez. Romero testified Martinez told him one rock hit Martinez’s
front passenger side below the window and a second rock hit the front bumper.




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                                        DISCUSSION
1. Evidence Code Section 1101
              The People filed a pretrial motion to introduce evidence of the September 9
rock-throwing incident involving Michel under Evidence Code section 1101, subdivision
(b). The people argued the September incident was sufficiently similar to the charged
offenses to be relevant and admissible on the issue of Nguyen’s intent, the absence of
mistake or accident, and his identity. Nguyen moved to exclude evidence of the
September 9 incident, citing Evidence Code sections 210 and 352.
              After hearing the arguments of counsel, the court concluded the September
9 incident was “extremely probative of intent and identity.” The court stated, “This
basically occurred at the same place, and it is the same act, throwing a rock at a car.” The
court acknowledged that the September 9 incident could be considered “a more serious
case” because Michel not only testified Nguyen threw a rock at his truck, but also said
Nguyen threw a rock and broke another truck’s window. But the court concluded, “This
is a classic case where identity is proven by the prior conduct or where the prior conduct
is relevant to prove identity. This is a very similar act, literally on the same street, at the
same intersection, rocks being thrown at cars. It is really a unique sort of thing. I’ve
never had somebody throw a rock at the car, but as I said, we’ve had – we have these
three incidents at the same intersection.”
              Nguyen disagrees with the court’s ruling. “We review the trial court’s
ruling for abuse of discretion. [Citations.]” (People v. Cage (Dec. 3, 2015, S120583) __
Cal.4th __ [2015 Cal. Lexis 9480, p. 26].) We find none here.
              “The rules governing the admissibility of evidence under Evidence Code
section 1101[, subdivision] (b) are well settled. Evidence of defendant’s commission of
other crimes, civil wrongs or bad acts is not admissible to show bad character or
predisposition to criminality, but may be admitted to prove some material fact at issue
such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

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mistake or accident. [Citations.]” (People v. Cage, supra, __ Cal.4th __ [p. 25].) When
the prosecution seeks to prove identity with evidence of an uncharged offense, the
admissibility of this uncharged offense “‘depends upon proof that the charged and
uncharged offenses share distinctive common marks sufficient to raise an inference of
identity.”’ (Ibid.)
              The court did not abuse its discretion by finding the three rock-throwing
incidents “really a unique sort of thing.” As the court observed, it is highly unusual to
have someone stand on a street corner and throw rocks at passing cars. It is even more
unusual to have someone stand on the same street corner and throw rocks at cars multiple
times over the course of two months. Nguyen points to minor differences in the crimes,
i.e., types of vehicles involved, time of day, and the differences between the victims and
their reactions, but these purported points of distinction only serve to highlight the
individuality of his acts. In short, the court properly admitted evidence that
approximately one month before the commission of the charged offenses on Bolsa
Avenue near Ward Street, Nguyen threw a rock at Michel’s car on Bolsa Avenue near
Ward Street. There was no error.
2. Penal Code Section 1385, Subdivision (a)
              Prior to the sentencing hearing, Nguyen filed a motion requesting the court
exercise its discretion to strike, or dismiss, one or both of his prior strike convictions for
sentencing purposes under Penal Code section 1385, subdivision (a) and People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.
              Nguyen argued his prior strike convictions were remote (25 years old) and
fueled by drug addiction. He also pointed to his age (55 at the time of sentencing) and
the relatively minor nature of the current crimes as reasons for Romero relief. The
prosecution argued Nguyen was a classic Three Strikes’ defendant.
              The court denied the Romero motion and ruled, “The priors were a long
time ago, 25 years, but they are then followed by 10 felony [drug] offenses, or they are

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part of a pattern that includes 10 felony offenses and 15 misdemeanors, a total of 25
different crimes over the same 25-year period essentially or something similar to that or
close to that. [¶] So I think this case is right down the center of the spirit of the Three
Strikes law. The defendant up till very recently would in fact be facing a possible
sentence to 25 years to life. Now, that’s not the requirement under the current law, but as
I said, this case is right down the center of the spirit of that law.”
              Nguyen asserts the court abused its discretion to strike, or dismiss, the
allegations that he had prior strikes within the meaning of the Three Strikes law. (Pen.
Code, § 1385, subd. (a); People v. Williams (1998) 17 Cal.4th 148, 162.) We disagree.
              A defendant’s request to dismiss prior strike allegations requires the court
to determine “‘whether, in light of the nature and circumstances of [the defendant’s]
present felonies and prior serious and/or violent felony convictions, and the particulars of
his background, character, and prospects, the defendant may be deemed outside the
[Three Strikes] scheme’s spirit, in whole or in part, and hence should be treated as though
he had not previously been convicted of one or more serious and/or violent felonies.’
[Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) A court acts
within its discretion “unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (Carmony, supra, 33 Cal.4th at pp. 376-377.)
              Here, the court considered the Carmony factors and decided Nguyen fit
squarely within the letter and spirit of the Three Strikes law. The probation report
catalogs a rather extensive list of drug-related felony and misdemeanor arrests and
convictions, plus another burglary conviction in 2002, all occurring within the 25-year
period Nguyen claims as a washout period between his “serious” criminal acts. The
record reveals the court carefully considered Nguyen’s arguments for Romero relief.
Nevertheless, the court found these arguments unpersuasive. In doing so, the court made
a reasonable decision, not one that is irrational, arbitrary. Thus, there was no error.



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                                  DISPOSITION
            The judgment is affirmed.



                                            THOMPSON, J.

WE CONCUR:



ARONSON, ACTING P. J.



FYBEL, J.




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