Filed 9/5/14 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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,

v. HANH TAN DUONG,
Defendant and Appellant. G049330
(Super. Ct. No. 12NF2639)

O P I N I O N

Appeal from a judgment of the Superio r Court of Orange County, David A. Hoffer, Judge. Affirmed.

Harry Zimmerman, under appointment by the Court of Appeal, for
Defendant and Appellant.

No appearance for Plaintiff and Respondent.2 We appointed counsel to represent Hanh Tan Duong on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against h is client
but advised the court he found no is sues to argue on h is behalf. Duong was given 30 days to file written argument on h is own behalf. That time has pa ssed, and Duong did
not file a brief.

Counsel filed a brief following the procedures outlined in People v . Wende (1979) 25 Cal.3d 436

. T he Wende court explained a Wende brief is one that sets forth a summary of proceedings and facts but raises no specific issues. Under these
circumsta nces, the court must conduct an independent review of the entire record. When specific issues are raised by the appellant himself in a Wende proceeding, we must expressly address them in our opin ion and explain why they have merit or fail

. ( People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.) Duong did not file a supplemental brief raising any issues.

Pursuant to Anders v. California (1967) 386 U.S. 738, counsel pr ovided the
court with information as to issue s that might arguably support an appeal . Counsel requested this court conduct its own review but also provided an extensive list of issues
for th e court to consider. Counsel questioned whether: (1) th e trial court err ed in refusing to instruct the prosecution needed to prove Duong ’ s knowledge the victims were loss prevention officers and had a poss essory interest in the property; (2) Duong was

com petent to waive his Miranda 1 rights given his voluntary drug intoxication; (3) there

was in sufficient evidence to support the element of force required for robbery; (4) the court erred in allowing the admission of Duong ’ s prior convictions an d incidents at Home Depot; (5) the court erred in denying Duong ’ s request to dismiss the strike prior

1 Miranda v. Arizona (1966) 384 U.S. 436 ( Miranda )

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for sentencing; (6) the court erred in denying Duong ’ s Marsden 2 motion; (7) the court
erred in overruling Duong ’ s hearsay objection to a statement made by one of the loss prevention officers during the struggle with Duong; and (8) the court erred in finding
D uong competent to stand trial.

We have reviewed the record in accordance with our obligations under
Wende a nd Anders and found no arguable issues on appeal. The judgment is affirmed.
FACTS
Mar io Mora, a plainclothes Asset P rotection S pecialist, was working at Home Depot

. Mora was walking the sales floor when he saw D uong in the Hardware Department. Mora watched from eight to 10 feet away as D uo ng selected several expensive sanding bits or blades, went to the back of the store, and put the items in his pocket s

. Mora alerted another plain cloth es Asset Protection Specialist,
Donal d Shaut , and they remained in contact by telephone while following D uong

.

Mora followed D uong t o the Mill Works Department and saw Duong select three garage door openers, go to an aisle with door displays, and conceal the openers i n his front and back waistband. D u o ng was wearing a long, baggy gray T

- shirt that was not tucked into his pants so the shirt covered the items h e had placed in his waistband.

Mora and Shaut watched D uong pick up a n item, approach a cashier, and ask for a price. After the c ashier scanned the item, Duong gave the item back to the
cashier and left the store.

Mora confronted Duong after he exited the s tore and identified himself as store security . He asked D uo ng to return inside the store with him. D uo ng t urned and made ey e contact with Mora. Duong told Mora that he did not have a nything and backed away from Mora

. Mora grabbed at the front of Duong ’ s shirt but los t his grip and latched onto Duong’s arm. Duong continued to try and pull away.

2 People v. Marsden (1970) 2 Cal.3d 118 ( Marsden )

.4 Shaut lost eye contact wit h Duong af ter seeing Duong approach th e cashier for the price check. Shaut next saw Duong when Shau t exited the store through a
different door and saw Duong involved in a physical confronta t ion with Mora. Shaut
rushed to Mora yelling , “ store security. ” Sh aut heard Mora doing the same. As Shaut

ran towards the struggle, Duong turn ed and r an into Shaut . The men became entangled with one another and fell to the gr o und. Duong continued to struggle with Shau t while they were on the ground, and Duong pinche d or dug into Shaut ’ s side as they struggled

. Despite Duong ’ s continued resistance, the o fficers eventually place d handcuffs on
D uong. Duong insisted he had not done anything and did not know why they stopped
him

. After Duong was standing, Mora lifted Duong ’ s shirt and observed the garage door openers were in his waistband. Mora and Shaut escorted Duong to the
Loss Prevention Assets Protection Office where they wrote a report and called the police

. T h e police did not respond for quite some time

. Duri ng the several hour wait , Duong made a variety of “ weird ” sta tements. Some of Duong ’ s statements included him saying his “Holy Spirit only fights with devil s ” and the devils follow him around. Duong also
indic ated he had smoked crack cocaine and had been awake for a couple of days. Mora
made a video of some of Duong ’ s statements with his cellular tele phone because the
statements seemed unusually bizarre. 3

Anaheim P olice O fficer Angelica Mejia arrived and took st atements from
Mora and Shaut. Duong was in handcuffs when Mejia arrived. Mejia advised Duong of
his Miranda righ ts. Duong indicated he understood each of his rights. Based on his responses, Mejia believed Duong had no problem understanding h er questio n s. When Mejia asked Duong why he was at the store, Duong said he had gone to th e store to steal. He explained that when he steal s things , he pay s someone to return the item s for him.

3 The video was played for the jury.5

Duong said he had gone to the same store the day before and the store would not allow
him to return items. Duong also said, “ ‘ I stole some stuff, I walked out, I ran out, I fought back, it ’ s a misunderstanding, I apologized. ’ ” Mejia transported Duong to the police station for booking.

An information charged D uong with t wo counts of second degree robbery ( Pen. Code, §§ 211, 212.5 ) 4 (counts 1 and 2), and commercial b urglary (§§ 459, 460, subd. (b) ) (c ount 3). The information alleged Duong suffered a previous serious and
viole nt felony conviction. (§§ 667, subds. (d) & (e )(1) ; 1170.12, subds. (b) & (c)(1) .) The information alleged the s ame conviction as a prior serious felony within the meaning of section 667, subdivision (a) (1)

.

Before trial began , Duong requested a Marsden hearing. At the Marsden
h earing, Duong compl ained his attorney though t he had mental health issues. Counsel acknowledged that based on a review of his file and her conversations with him, counsel intended to declare a doubt as to Duong ’ s competency to stand trial. The trial court denied the motion to relieve counsel.

After the trial court denied the Marsden motion , c ounsel declared a doubt as to Duong ’ s competency to stand trial. Criminal proceedings were suspended, and proceeding s pursuant to section 1368 were instituted. At the competency hearing, both the prosecution and Duong submitted the matter on the doctors ’ reports. The cou rt found by a preponderance of the evidence Duong was competent to stand trial and crimina l proceedings were reinstated.

At trial , Duong presented a voluntary i ntoxicati on or mistake of fact
defense. Co unsel argued Duong was hallucinating from his drug use and was too high to know his plainclothes attackers we re associated with Home Depot. In closing argument,

4 All further statutory references are to the Penal Code

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counsel conceded Duong ’ s guilt of commercial burgl ary , and argued rather than robbery, Duong was only guilty of two counts o f petty theft. The jury convicted Duong of all three charged offense.

The trial court sent Duong to a Department of Corrections facility and ordered a section 1203.03 diagnostic s tudy. Prior to the trial on the substantive offenses, Duong waived his right to a jury trial on the prior conviction allegations. After Duong returned from the diagnostic study, the court held a trial on th e prior conviction allegations. The court found the one alleged section 667 , subdivision (a)(1), prior
conviction true and denied Duong ’ s motion to strike the one prior under the Three Strikes Law. (§ 667, subds. (b)

- (i); People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497.) In denying the motion to strike, the court indic ated it had sympathy for Duong but noted his lengthy cri minal history and the fact his crimes increased in seriousness.

The trial court sentenced Duong to the low term of two years on count one , doubled to four years as a secon d strike. The court imposed the same se ntence on

count two to ru n concurrent with c ount one. The court stayed the sentence on count t hree pursuant to section 654. The court imposed a consecutive five

- year term for the section 667, subdivision (a)(1), pr ior conviction. Duong’s total prison term was nine
years. The court also imposed various fines and fees. Duong was awarded 446 actual days in custody and 66 days of conduct credit

— limited to 15 percent under section
2 933.1

— for a total of 512 days.
DISCU SSION

The fact counsel filed the opening brief under Wende confirms he does not believe the issues he listed are arguable. We have also reviewed the record in accordance with our obligations under Wende and Anders and considered the issues listed by cou nsel. We find no arguable issues on appeal.7 DISPOSITION The judgment is affirmed.

O’LEARY, P. J.

WE CONCUR:

RYLAARSDAM, J.

THOMPSON, J.