Filed 4/28/16 P. v. Pham 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                         G052160

         v.                                                            (Super. Ct. No. 15CF0089)

TRANG THU PHAM                                                         OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County,
W. Michael Hayes, Judge. Affirmed.
                   Arielle Bases, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   No appearance for Plaintiff and Respondent.
              We appointed counsel to represent Trang Thu Pham on appeal. Counsel
filed a brief that set forth the facts of the case. Counsel did not argue against her client
but advised the court she found no issues to argue on her behalf. We gave Pham 30 days
to file written argument on her own behalf. That time has passed, and Pham has not filed
any written argument.
              Counsel filed a brief following the procedures outlined in People v. Wende
(1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that
sets forth a summary of proceedings and facts but raises no specific issues. Under these
circumstances, the court must conduct an independent review of the entire record. When
the appellant herself raises specific issues in a Wende proceeding, we must expressly
address them in our opinion and explain why they fail. (People v. Kelly (2006)
40 Cal.4th 106, 110, 120, 124.) Here, Pham did not raise any issues herself.
              Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the
court with its independent review, counsel provided the court with information as to
issues that might arguably support an appeal. Counsel identified the following four
issues: was there sufficient evidence to support Pham’s conviction for vandalism (Pen.
                          1
Code, § 594.3, subd. (a)) ; was Pham in custody when she made incriminating statements
to officers; did the trial court abuse its discretion when it denied Pham’s section 17,
subdivision (b)(1), motion; and did the court impose invalid probation terms.
              We have reviewed the record in accordance with our obligations under
Wende and Anders, and considered the information provided by counsel. We found no
arguable issues on appeal. The judgment is affirmed.
                                           FACTS
              Saykya Sunnyata is a monk who has resided at the Huong Tich Buddhist
Temple (the Temple) for over 20 years. Alice Hoa Nguyen (Alice) is the monk in charge
1
              All further statutory references are to the Penal Code, unless otherwise
indicated.

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of prayers at the temple. Nguyen has lived at the temple for 13 years. In December
2014, both Sunnyata and Nguyen noticed damage on various temple statues. On
December 16, 2014, surveillance videos showed images of a woman throwing objects at
the temple. A Buddha statue that was damaged was worth approximately $5,000 in 2000.
It is now worth $15,000, but neither Sunnyata nor Nguyen requested money for the
damages.
             Santa Ana Detective Alan Gonzalez was assigned to investigate vandalism
at the Temple. On January 13, 2015, Gonzalez was contacted by Costa Mesa Officer
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Torres regarding a possible suspect, Pham, matching the person shown in the
surveillance video. Torres told Gonzalez that Pham was with him and had asked him to
give her a ride to her residence, which was located near a Santa Ana Police substation
(the substation). Rather than take her home, Gonzalez asked Torres to bring Pham to the
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substation. Gonzalez went to the substation with Detective Nguyen, a certified
Vietnamese translator.
             Torres transported Pham, who was in the back seat of a marked police
vehicle, to the substation. Pham was not handcuffed. Torres was wearing his police
uniform with his gun and badge visible. Gonzalez had seen still pictures from the
surveillance video of the Temple, and when he first saw Pham, he thought she looked like
the woman in the pictures.
             After Torres and Pham arrived at the substation, Pham got out of the
vehicle. Gonzalez and Nguyen approached Pham—they were in plain clothes, but they
were wearing badges. Gonzalez and Nguyen identified themselves as police officers and
said they wanted to speak with her. They told Pham that they were investigating a series


2
             The record does not contain Torres’s first name.
3
             The record does not contain Nguyen’s first name.


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of vandalisms. The officers advised Pham that she was not under arrest, she did not have
to speak with them, and she was free to leave. The officers did not advise Pham of her
rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). They did not
record the contact.
              When the officers showed her the surveillance photos, Pham admitted she
was the person in the photographs and the video. Pham said she was the person throwing
bottles at the Temple. Pham explained she vandalized the Temple because someone who
had ties to the Temple had killed her family member. This exchange, which lasted five to
10 minutes, took place outside the vehicle in a public parking lot next to the substation.
The officers arrested Pham.
              An information charged Pham with felony vandalism of religious property
(§ 594.3, subd. (a)) (count 1), and felony vandalism of $400 or more (§ 594, subds. (a),
(b)(1)) (count 2). Before trial, as relevant here, Pham filed a motion to exclude her
statements to police. After a hearing on the motion, the court denied the motion.
              At trial, Sunnyata testified that Buddhists prayed not only in the Temple,
but they also prayed to and worshiped the statues. Alice explained how part of the
Buddhist practice is to venerate the statues with fruit and incense.
              A jury convicted Pham on count 1, but was unable to reach a verdict on
count 2. At the sentencing hearing on May 15, 2015, the trial court considered the
probation and sentencing report, Pham’s sentencing brief, and a psychological evaluation.
The court indicated it was willing to consider a probationary sentence because Pham was
delusional and this was not the typical attack on religion. The court denied Pham’s
section 17, subdivision (b), motion, but indicated it would grant five years of supervised
probation, and if Pham had no issues at the end of three years, she could petition the court
to terminate probation.
              As the trial court was completing pronouncement of the terms and
conditions of probation, Pham said, “I want to change lawyer [sic].” The court excused

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the prosecutor and inquired of Pham as to her request for a new lawyer. The court had a
brief conversation with Pham during which she complained about the conditions of
probation. The court continued in open court with the prosecutor present. The court
indicated it wanted to make sure Pham had sufficient time to process the information she
had been given before the court proceeded further. The court opined that given Pham’s
current emotional state, it was not in anyone’s best interest to place her on probation at
this hearing. It expressed concern that without a better understanding of her situation,
Pham would simply violate her probation. The court found good cause to continue
sentencing and ordered Pham to be seen by the mental health professionals at the jail.
              On May 26, 2015, with counsel and Pham’s consent, the court continued
with pronouncement of the sentence. The court ordered imposition of the sentence
suspended and placed Pham on formal probation for five years with the condition that
after three years, Pham could apply to have probation modified if there are no violations.
The court ordered Pham to serve 268 days in county jail with credit for 134 actual days
served and 134 conduct days. The court also ordered Pham to pay a restitution fine of
$300 pursuant to section 1202.4, a probation revocation restitution fine of $300 pursuant
to section 1202.44, a court operations fee of $40 pursuant to section 1465.8, and a
criminal conviction assessment fee of $30 pursuant to Government Code section 70373,
subdivision (a)(1). The court found Pham did not have the ability to pay the cost of the
probation report or the cost of probation. The court also ordered Pham to provide DNA
samples pursuant to section 296.
              The trial court also required as conditions of probation the following:
Pham submit to drug and narcotics testing as directed by her probation officer; submit her
person and property, including any residence, premises, container, or vehicle under her
control, to search and seizure at any time of the day or night by any law enforcement or a
probation officer with or without a warrant, with or without probable cause or reasonable
suspicion; not operate a motor vehicle with a measurable amount of alcohol in her blood;

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submit to a chemical test of her blood, breath, or urine on demand of any peace officer or
probation officer; cooperate with her probation officer’s plan for psychiatric,
psychological, alcohol and/or drug treatment or counseling; and to not have contact with
the Temple. Pham agreed to all the probation terms and conditions.
              The trial court did not impose a restitution condition citing the testimony of
the Temple monks, who specifically indicated they did not want restitution. It indicated
the motivation on the part of the Temple to waive restitution was rooted in their religious
beliefs and the court would not override the victims’ wishes. The court ordered count 2
dismissed. Pham timely appealed.
                                      DISCUSSION
              Counsel raised four issues pursuant to Anders. We will address each issue
anon.
Sufficiency of the Evidence
              Section 594.3, subdivision (a), provides: “Any person who knowingly
commits any act of vandalism to a church, synagogue, mosque, temple, building owned
and occupied by a religious educational institution, or other place primarily used as a
place of worship where religious services are regularly conducted or a cemetery is guilty
of a crime punishable by imprisonment in a county jail for not exceeding one year or
imprisonment pursuant to subdivision (h) of [s]ection 1170.”
              Here, Pham admitted throwing bottles at the Temple. Pham explained she
had vandalized the Temple because someone who had ties to the Temple killed her
family member. Sufficient evidence supports Pham knowingly committed an act of
vandalism at the Temple.
Pham’s Statements
              It is well settled Miranda advisements are required only when a person is
subjected to “custodial interrogation.” (Miranda, supra, 384 U.S. at p. 444.) A custodial
interrogation does not occur where an officer detains a suspect for investigation and the

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questioning is limited to the purpose of identifying a suspect or “to obtain [sufficient]
information confirming or dispelling the officer’s suspicions. [Citation.]” (People v.
Farnam (2002) 28 Cal.4th 107, 180.) Whether a person is in custody is an objective test
and the question is whether there was a formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest. (People v. Leonard (2007)
40 Cal.4th 1370, 1400.) The totality of the circumstances is considered and includes
“(1) whether the suspect has been formally arrested; (2) absent formal arrest, the length
of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the
demeanor of the officer, including the nature of the questioning.” (People v. Forster
(1994) 29 Cal.App.4th 1746, 1753.)
              Here, Pham was not in the substation, she was not handcuffed, and she was
not under arrest. Gonzalez and Nguyen were in plain clothes. After identifying
themselves as police officers, the officers told Pham they were investigating a series of
vandalisms. The officers told Pham that she was not under arrest, she did not have to
speak with them, and she was free to leave. When the officers showed Pham the
surveillance photographs, she responded by admitting she was the person throwing
bottles at the Temple and that she was the person in the video. She then went on to
explain why she had vandalized the Temple. Their conversation lasted no more than 10
minutes in a public parking lot. Based on these circumstances, there is no basis to
conclude Pham was in custody for purposes of the Miranda advisements.
Denial of Pham’s Section 17, Subdivision (b)(5), Motion
              “The Legislature has classified most crimes as either a felony or a
misdemeanor, by explicitly labeling the crime as such, or by the punishment prescribed.”
(People v. Park (2013) 56 Cal.4th 782, 789 (Park).) However, there is a special category
of crimes that is punishable as either a felony or a misdemeanor, depending on the
severity of the facts surrounding its commission. (People v. Superior Court (Perez)
(1995) 38 Cal.App.4th 347, 360, fn. 17.) These crimes, referred to as “wobblers,” are

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“punishable either by a term in state prison or by imprisonment in county jail and/or by a
fine.” (Park, supra, 56 Cal.4th at p. 789.) The trial court has discretion to “reduce a
wobbler to a misdemeanor either by declaring the crime a misdemeanor at the time
probation is granted or at a later time—for example, when the defendant has successfully
completed probation.” (Id. at p. 793.) The decision to reduce a felony to a misdemeanor
is a sentencing decision made by the trial court. In the absence of a showing that a
criminal sentencing decision was irrational or arbitrary, the trial court is presumed to
have acted to achieve the legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on appellate review.
(People v. Carmony (2004) 33 Cal.4th 367, 375.)
              The record demonstrates the trial court thoughtfully considered Pham’s
motion to reduce the vandalism offense to a misdemeanor. Although the court denied the
motion, it indicated it would reconsider a request to reduce the matter to a misdemeanor
if Pham successfully completed three years of probation. We find no abuse of discretion.
Probation Terms
              In People v. Welch (1993) 5 Cal.4th 228, 237, our Supreme Court held a
criminal defendant’s failure to challenge the “reasonableness” of a probation condition
proposed at the probation and sentencing hearing constitutes a waiver of the claim on
appeal. The court explained that a timely objection allows the trial court to modify or
delete an allegedly unreasonable condition or to explain why it is required in the
particular case and a rule foreclosing appellate review of contentions not timely raised
helps discourage the imposition of invalid probation conditions and reduce costly
appeals. (Id. at p. 235.) Pham did not object at the sentencing hearing to any of the terms
and conditions imposed by the trial court. In fact, she indicated she would accept the
terms and conditions. Accordingly, she has forfeited this claim.




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                                  DISPOSITION
            The judgment is affirmed.




                                            O’LEARY, P. J.

WE CONCUR:



BEDSWORTH, J.



FYBEL, J.




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