People v. Vang, F054990 (Cal. App. 11/4/2009)

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THE PEOPLE, Plaintiff and Respondent, v. HUA VANG, Defendant and Appellant.

F054990

Court of Appeals of California, Fifth Appellate District

November 4, 2009

Appeal from a judgment of the Superior Court of Fresno County, No. 7903393, M. Bruce Smith, Judge.

Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Lewis M. Vasquez, Supervising Deputy Attorney General, Lloyd G. Carter and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published in the Official Reports

OPINION

ARDAIZ, P.J.

Appellant Hua Vang stands convicted, following a jury trial, of forcible rape (Pen. Code,¹ § 261, subd. (a)(2); count 1) and forcible rape in concert (§§ 261, subd. (a)(2), 264.1; count 2). As to each count, he was found to have personally used a firearm in commission of the offense (§ 12022.3, subd. (a)), and the jury further found, within the meaning of section 667.61, subdivision (a), that two or more circumstances under section 667.61, subdivision (e) applied, in that the offenses were committed during a burglary (id., subd. (e)(2)), a dangerous weapon was used (id., subd. (e)(4)), and a victim was bound (id., subd. (e)(6)). Appellant was sentenced to prison for a total unstayed term of 25 years to life plus four years, to be served consecutively to the sentence he was already serving in another case. In this timely appeal, he raises various claims of trial and sentencing error, as well as ineffective assistance of counsel. For the reasons that follow, we will vacate the sentence on count 2 and remand the matter for resentencing thereon, but otherwise affirm.

FACTS

The Charged Offenses

Kh. and her family were from Laos.² Kh. spoke the green dialect of Hmong. On April 28, 1998, the family lived in Pinedale. Present in the home that night were Kh. and her husband, Ch., and the four of their children who were under age four and slept in the parents' bedroom; their oldest son V. and his wife, L., and baby, who lived in their own room; sons C. and X., who shared a room; and daughters K. and O., who shared a different room. Kh. and Ch. made a living mostly by selling produce at a farmers' market.

Before going to bed that night, the family closed all of the windows in the house. At some point, some people broke open the door and came inside Kh. and Ch.'s room. When they turned on the light, Kh. saw that one was holding a handgun. It was black and looked like the kind police officers carry. The man holding it wore a ski mask over his face and told them not to move or he would shoot them. He spoke in the white dialect of Hmong. Kh. could hear her children crying elsewhere in the house.

Three other men, all of whom also had something covering their faces and black gloves with no fingertips, came into the room and bound Ch. with gray duct tape.³ They tightly bound his feet and hands, and also put tape over his mouth and eyes. Two of the men left to go to the other rooms. Kh. could hear them talking in English. The remaining two then dragged Kh. out of bed and demanded money. When she said they had none, one of the men disputed this, saying the couple had just been to the market. The one who did not have the gun started kicking Ch. hard in the chest. Thinking Ch. might be dying, Kh. started begging the men, saying, "We are all Hmong and I beg you if you need something, just ask nicely, don't beat us up."⁴ They said that if the couple did not give them the money, they would be beaten. They asked if the couple wanted to die, then the one who kicked Ch. put tape over Kh.'s mouth and bound her hands and feet. One pulled off the necklace Kh. was wearing.

While this was going on, two people kicked down the locked door to V. and L.'s room. The intruders' faces were covered. L. could see one's fingers, but not the palm of his hand. One had a dark handgun. L. could hear the voices of other intruders in the home, but could not tell how many.

One of the intruders bound L.'s and V.'s ankles and wrists with duct tape. He also taped V.'s eyes. When the baby began to cry, one told L. to shut him up or he would kill him. One of the men went and got a bottle for the child. The intruders searched the room and took L.'s wedding rings from her fingers.

The intruders left the room for a short time, then returned. One asked V. how much he weighed. When V. told him, the man picked V. up and carried him away. After V. was taken away, L. and the baby were left alone, but often one of the intruders was with them. Throughout the ordeal, the intruders spoke to L. in English. She did not recall hearing them speak in another language.

Meanwhile, the intruders asked Kh. which child she cared about most. She told them that she loved all of her children the same. A short time later, V. was carried into the room. The intruders knew he was the one Kh. cared about the most.⁵ They beat him in front of Kh. and demanded money. They threatened that if she did not give it to them, they would beat him to death. Kh. told them to look under the bed, where she had a few hundred dollars. The one without the gun retrieved the money, but they said it was not enough. They then began searching the room. Kh. could hear her children crying and the intruders in every other room, searching. They continued to search until they found Kh.'s silver bar and silver coins that were used to decorate Hmong clothing. They took those and another necklace. The items were never recovered.

At some point, it sounded to L. as if the intruders were getting frustrated because they could not get what they wanted. L. heard one in the hallway say, "I'm going to go and get my groove on." One then came and grabbed her shorts and tried to pull them down. When she managed to hold on to them, the man struck her in the arm, but left the room. L. could hear her sister-in-law crying, and one of the intruders telling someone to go and get salt and a knife.

K., who was 15 at the time, had been awakened when someone came into her room and turned on the light. The man told her to get up, so she woke her sister, O., who was 13 or 14 at the time. The girls were told to go to C.'s room. K. only saw one man. He was wearing a black mask and had a grayish-colored gun.

K., O., C., and X. were all on one bed in the boys' room. Two other men came in. They were also wearing masks. They bound the youngsters' feet and hands with duct tape. The children were then left alone in the room. K. could hear Ch. saying that they did not have any money or something and Kh. begging them to stop.

Two of the intruders, who spoke to the children in English, took O. back into the girls' room. O. was not gone long. She told K. to tell them that she was on her period and that they would leave her alone. One of the men then carried K. into the girls' room. There were two men in the room altogether. They took the tape off of her ankles and laid her on O.'s bed. K. told them that she was on her period, but they did not say anything. One of the men then started touching her breasts, and he took off her shorts. The other was holding a gun. She told them no, but they threatened to bring in her father and beat him. The one who was touching her removed his pants, spread open her legs, and tried to penetrate her vagina with his penis.⁶ He and the other one then switched. The one who had first tried to rape her took the gun. The other one then took down his pants and raped her for several minutes. When he was finished, he got off of her and wiped her with a towel or blanket. He also wiped his penis. She pulled her shorts back on and then somebody carried her back into C.'s room.

Eventually, things grew quiet and, after hearing the front door shut, L. freed herself and then helped free the others. Because the telephone had been hidden, Ch. went outside and called the police from the phone of a nearby relative. K. came into her parents' room. She was crying and related that one of the men had tied her hands and then forced her to have sex. She said they did that to her and she would die.⁷ The police found her in the closet in her parents' room. One of the dining room windows was found to be broken.

Fresno Police Officer Morrill took a statement from L. immediately after the incident. L. described one of the assailants as standing five feet three inches tall, weighing 160 pounds, and having black hair and a light green T-shirt on his head and covering his face. Morrill also interviewed K. She described the person who took the tape off her legs and who was one of her rapists as being five feet three inches tall and weighing 160 pounds, possibly wearing a green shirt, and with some kind of shirt covering his face.

The DNA Evidence

A sexual assault examination was performed on K. early on the morning of April 28, 1998. Vaginal swabs were taken, as was a sample of her blood, and all were turned over to police. On December 7, 2001, the sexual assault kit was transported to the Department of Justice (DOJ) laboratory in Fresno for DNA analysis. At the time, DOJ had a database called CODIS (Combined DNA Indexing System) that was coming into effect, and so all of the old cases that the police department had in storage were being sent to DOJ to be analyzed to see if there was any DNA evidence that could be submitted to the CODIS program.

Criminalist Ken Penner examined the evidence in November 2002. Finding spermatozoa on a vaginal smear slide, he prepared two of the vaginal swabs for submittal to the DNA laboratory in Richmond, and also included a stain card he prepared from the sample of K.'s blood.⁸ Those samples were shipped to the Richmond laboratory on November 7, 2002.

Diane Coffman, a senior criminalist at the DOJ Jan Bashinski DNA Laboratory in Richmond, began her analysis of the evidence on December 13, 2002. She first obtained a 13-loci STR profile of the DNA in the...