People v. Vang

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

F077581

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

May 27, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Fresno Super. Ct. No. F16905542)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Timothy A. Kams, Judge.

Han N. Tran, Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

On the morning of September 3, 2016, appellant and defendant Thong Vang entered the public lobby of the Fresno County Main Jail while armed with a concealed .380-caliber semiautomatic handgun. He was on parole and had recently been released from prison after serving a lengthy term for committing multiple rapes.

The jail lobby was busy with people who were checking in to visit inmates. Defendant stood by the metal detector and refused to move when requested by the correctional officer on duty in the lobby, who then called for assistance. Correctional Officer Juanita Davila responded and asked defendant to move away from the metal detector. Defendant refused and pulled a gun. After a brief struggle, defendant fired a single gunshot into Davila's chin that shattered her jaw. Correctional Officer Toamalama Scanlan, who also responded to the lobby, tried to discharge his Taser at defendant. Defendant shot Scanlan in the head. Both Davila and Scanlan survived, but Scanlan suffered a traumatic brain injury and was left in a persistent vegetative state. Numerous officers from the Fresno County Sheriff's Department and Fresno Police Department responded to the lobby and took defendant into custody at gunpoint.

Defendant was charged and convicted of the attempted murders of Officers Davila and Scanlan, with other offenses and firearm enhancements, and five prior strike convictions. Defendant testified at trial and asserted he acted in self-defense because he believed the officers were going to harm him. He was sentenced to an aggregate term of life in prison with the possibility of parole, plus 50 years to life for the firearm enhancements, and consecutive terms of 20 years for prior serious felony conviction enhancements.

On appeal, defendant contends the prosecutor committed prejudicial misconduct in two instances: by cross-examining defendant about his prior juvenile adjudication that the court had previously excluded, and improperly appealing to the sympathies of the jury in closing argument. Next, defendant argues the court failed to fully advise him of thesentencing consequences when he admitted the prior conviction allegations, and his admissions must be stricken. He separately argues the matter must be remanded for resentencing because the court was unaware it had discretion to dismiss the firearm enhancements at the time of the sentencing hearing, and it should have the opportunity to consider whether to dismiss the prior serious felony enhancements based on legislation enacted after the sentencing hearing was held.

Defendant further argues defense counsel was prejudicially ineffective for calling a forensic psychologist as the defense expert, because the expert diagnosed defendant with antisocial personality disorder, and asserts such an opinion severely undermined defendant's credibility when he testified at trial. Finally, defendant contends the court improperly imposed various fines and fees without determining his ability to pay those amounts.

We affirm.

FACTS

On Saturday, September 3, 2016, Correctional Officer Michael Hanlin was on duty at the security counter in the lobby of Fresno County's Main Jail. The lobby is a public area that is accessible through jail's outer street doors. The public may enter the lobby without having to be screened or walk through a metal detector.

Officer Hanlin and other correctional officers at the jail are employed by the Fresno County Sheriff's Department, but not all correctional officers are peace officers. The jail's correctional officers do not carry firearms inside the facility, but instead carry nonlethal weapons of batons and pepper spray. They are authorized to carry firearms when transporting inmates outside the jail.

The sheriff's department has a Security Emergency Response and Tactics (SERT) team, that is "basically the SWAT team for inside the jail" and specializes in "less lethal weapons and tactics." The SERT team members do not carry firearms, but instead carrynonlethal Tasers and pepper ball "launchers" that discharge paintball shots filled with pepper powder.

Members of the SERT team and correctional officers may obtain firearms from the jail's locked armory only if accompanied by a sergeant.

Correctional Lieutenant Michael Porter was a sworn peace officer with the sheriff's department and supervised the daily operations of the jail's entire facility and the officers on duty. On the day of the shooting, Porter was the on-duty watch commander and the only correctional officer in the jail who was armed.

The lobby, release vestibule, and records hallway

On the morning of the shooting, Officer Hanlin was sitting behind the security desk, which is a blue counter in the back portion of the lobby. Hanlin was responsible for registering family members who wanted to visit inmates, and processing inmates who were being released.

From his position behind the security counter, Officer Hanlin faced the lobby and the public doors. A metal detector was located to Hanlin's left side. (A person entering the lobby through the public doors and facing the security desk would see the metal detector on the right side.) A member of the public who enters the secure part of the jail to visit an inmate has to go through the metal detector.

A person authorized to walk through the metal detector reaches a small "sally port" that leads in two directions. If the person continues straight through, he will reach a locked door to the "elevator vestibule" that leads to "Elevator Four." This elevator goes to the area where visitors meet with inmates and other secure parts of the jail.

A person who walks through the metal detector and turns left reaches a locked door to the "release vestibule." The release vestibule is a small room secured by two locked doors with glass windows that are bullet resistant but not bullet proof. The exterior door connects the release vestibule to the sally port, metal detector, and the lobby. The vestibule's interior door leads to the jail's secure interior area.

The two locked doors on either side of the release vestibule only can be opened remotely by either the officer at the lobby security desk, or the officer at the jail's central control desk (located elsewhere in the main jail). The two doors cannot be opened at the same time as a matter of security; one door has to close and lock, and only then can the other door be unlocked and opened remotely.

A person who is inside the release vestibule can look through the window and see the lobby, metal detector, and the security counter. The window in the vestibule has a small pass-through hatch to allow paperwork to be passed to an inmate being released.

On the right side of the security counter, on the opposite side of the lobby from the metal detector, is a small walkway. There is a locked door with a glass window adjacent to that walkway (the "records doors") that leads to the records and fingerprint departments. There is no metal detector in front of this door, and it is not open to the public.

DEFENDANT ENTERS THE LOBBY

Around 8:30 a.m., a man, later identified as defendant, entered the lobby through the main doors. Defendant was wearing a black shirt, light-colored pants, and a dark cap. A security video showed that he stood in the middle of the lobby, facing the security desk.¹ There were about 15 to 20 people in the lobby who were waiting to visit inmates, and children were present.

Officer Hanlin was stationed behind the security counter and remained behind the counter for the entirety of this incident. At the time defendant arrived in the lobby, Hanlin was assisting a woman at the counter. He looked up and saw defendant standing next to the woman. Hanlin asked defendant if he needed assistance. Defendant said that he wanted to visit someone. Hanlin told defendant to stand in line to wait his turn. Defendant walked away from the counter.

Defendant refuses to move away from the metal detector

Officer Hanlin returned to his duties and did not pay attention to defendant. When Hanlin looked up again, defendant was standing directly in front of the metal detector on the left side of the security counter. Hanlin testified defendant's location by the metal detector was a security issue because if the exterior door to the release vestibule opened, a person standing by the adjacent metal detector could possibly enter the secure area of main jail.

Officer Hanlin told defendant that he could not stand there and needed to move. Defendant said he was not going to move, and he would rather go to jail. Hanlin told defendant that he could not arrest him, and he could go to the police department and turn himself in.² Defendant stayed in front of the metal detector and did not explain why he wanted to go to jail.

Officer Hanlin remained behind the security counter but called on his radio for additional correctional officers to respond to the lobby.

Officer Davila responds to the lobby

Correctional Officer Juanita...