Filed 9/5/14 P. v. Duong CA4/3

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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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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,

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 Superior 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.
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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 his client 

but advised the court he found no issues to argue on his behalf. Duong was given

30 days to file written argument on his own behalf. That time has passed, and Duong did 

not file a brief. 

Counsel filed a brief following the procedures outlined in People v. Wende

(1979) 25 Cal.3d 436. The Wende court 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 

specific issues are raised by the appellant himself in a Wende proceeding, we must 

expressly address them in our opinion 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 provided the 

court with information as to issues that might arguably support an appeal. Counsel 

requested this court conduct its own review but also provided an extensive list of issues 

for the court to consider. Counsel questioned whether: (1) the trial court erred in 

refusing to instruct the prosecution needed to prove Duong’s knowledge the victims were 

loss prevention officers and had a possessory interest in the property; (2) Duong was 

competent to waive his Miranda

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rights given his voluntary drug intoxication; (3) there 

was insufficient evidence to support the element of force required for robbery; (4) the 

court erred in allowing the admission of Duong’s prior convictions and incidents at

Home Depot; (5) the court erred in denying Duong’s request to dismiss the strike prior 

 

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Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
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for sentencing; (6) the court erred in denying Duong’s Marsden

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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 

Duong competent to stand trial.

We have reviewed the record in accordance with our obligations under 

Wende and Anders and found no arguable issues on appeal. The judgment is affirmed.

FACTS

Mario Mora, a plainclothes Asset Protection Specialist, was working at 

Home Depot. Mora was walking the sales floor when he saw Duong in the

Hardware Department. Mora watched from eight to 10 feet away as Duong selected 

several expensive sanding bits or blades, went to the back of the store, and put the items 

in his pockets. Mora alerted another plainclothes Asset Protection Specialist,

Donald Shaut, and they remained in contact by telephone while following Duong.

Mora followed Duong to the Mill Works Department and saw Duong select 

three garage door openers, go to an aisle with door displays, and conceal the openers in 

his front and back waistband. Duong was wearing a long, baggy gray T-shirt that was not 

tucked into his pants so the shirt covered the items he had placed in his waistband.

Mora and Shaut watched Duong pick up an item, approach a cashier, and 

ask for a price. After the cashier scanned the item, Duong gave the item back to the

cashier and left the store.

Mora confronted Duong after he exited the store and identified himself as 

store security. He asked Duong to return inside the store with him. Duong turned and 

made eye contact with Mora. Duong told Mora that he did not have anything and backed 

away from Mora. Mora grabbed at the front of Duong’s shirt but lost his grip and latched 

onto Duong’s arm. Duong continued to try and pull away. 

 

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People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
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Shaut lost eye contact with Duong after seeing Duong approach the cashier 

for the price check. Shaut next saw Duong when Shaut exited the store through a 

different door and saw Duong involved in a physical confrontation with Mora. Shaut 

rushed to Mora yelling, “store security.” Shaut heard Mora doing the same. As Shaut 

ran towards the struggle, Duong turned and ran into Shaut. The men became entangled 

with one another and fell to the ground. Duong continued to struggle with Shaut while 

they were on the ground, and Duong pinched or dug into Shaut’s side as they struggled. 

Despite Duong’s continued resistance, the officers eventually placed handcuffs on 

Duong. 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. 

The police did not respond for quite some time. During the several hour wait, Duong 

made a variety of “weird” statements. Some of Duong’s statements included him saying 

his “Holy Spirit only fights with devils” and the devils follow him around. Duong also 

indicated 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 telephone because the 

statements seemed unusually bizarre.

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Anaheim Police Officer Angelica Mejia arrived and took statements from 

Mora and Shaut. Duong was in handcuffs when Mejia arrived. Mejia advised Duong of 

his Miranda rights. Duong indicated he understood each of his rights. Based on his 

responses, Mejia believed Duong had no problem understanding her questions. When 

Mejia asked Duong why he was at the store, Duong said he had gone to the store to steal. 

He explained that when he steals things, he pays someone to return the items for him. 

 

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The video was played for the jury.
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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 Duong with two counts of second degree robbery 

(Pen. Code, §§ 211, 212.5)

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(counts 1 and 2), and commercial burglary (§§ 459, 460, 

subd. (b)) (count 3). The information alleged Duong suffered a previous serious and 

violent felony conviction. (§§ 667, subds. (d) & (e)(1); 1170.12, subds. (b) & (c)(1).) 

The information alleged the same 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

hearing, Duong complained his attorney thought 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, counsel declared a doubt 

as to Duong’s competency to stand trial. Criminal proceedings were suspended, and 

proceedings pursuant to section 1368 were instituted. At the competency hearing, both 

the prosecution and Duong submitted the matter on the doctors’ reports. The court found 

by a preponderance of the evidence Duong was competent to stand trial and criminal 

proceedings were reinstated.

At trial, Duong presented a voluntary intoxication or mistake of fact 

defense. Counsel argued Duong was hallucinating from his drug use and was too high to 

know his plainclothes attackers were associated with Home Depot. In closing argument, 

 

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All further statutory references are to the Penal Code.
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counsel conceded Duong’s guilt of commercial burglary, and argued rather than robbery, 

Duong was only guilty of two counts of 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 study. 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 the 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 indicated it had sympathy for Duong but noted 

his lengthy criminal 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 second strike. The court imposed the same sentence on

count two to run concurrent with count one. The court stayed the sentence on count three 

pursuant to section 654. The court imposed a consecutive five-year term for the

section 667, subdivision (a)(1), prior 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 

2933.1—for a total of 512 days.

DISCUSSION

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 counsel. 

We find no arguable issues on appeal. 
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DISPOSITION

The judgment is affirmed.

O’LEARY, P. J.

WE CONCUR:

RYLAARSDAM, J.

THOMPSON, J.