Appeal from a judgment of the Superior Court of Orange County, James A. Stotler, Judge. Affirmed. (Super. Ct. No. 04WF2241).
The opinion of the court was delivered by: Ikola, J.
CERTIFIED FOR PUBLICATION
A jury convicted defendant Huy Ngoc Nguyen of forcible rape (count 1) (Pen. Code, § 261, subd. (a)(2))*fn1 and committing a lewd act on a child under age 14 (count 2) (§ 288, subd. (a)). The jury also found true defendant committed sex offenses against more than one victim. (§ 667.61, subds. (b), (e)(5).) The court sentenced defendant to a total term of 30 years to life, comprised of two consecutive terms of 15 years to life. Defendant contends that (1) under section 784.7, subdivision (a), the court erroneously ruled count 2 could be tried in Orange County even though the offense was committed in San Bernardino County; (2) the court erroneously admitted evidence of uncharged conduct; (3) his trial counsel rendered ineffective assistance; and (4) he was prejudiced separately by the foregoing errors and cumulatively by their combination.
We hold that section 784.7, subdivision (a), permits the joinder of any combination of its listed sex crimes, but requires the court to hold a section 954 joinder hearing at which the court may exercise discretion to deny joinder "in the interest of justice and for good cause shown." Here, the court did not abuse its discretion in permitting the San Bernardino offense to be joined with an Orange County offense for trial in Orange County. We further hold that although the court erroneously admitted evidence of uncharged non-sexual conduct under the purported authority of Evidence Code section 1108, the error was harmless. We also reject defendant's claims of ineffective assistance of counsel and cumulative error. Accordingly, we affirm the judgment.
At defendant's trial in 2008, the court admitted evidence, under Evidence Code section 1108, of defendant's uncharged conduct that took place in 1987 through 1991 and for which defendant has never been tried or punished. We divide our factual recitation between defendant's charged offenses and uncharged conduct.
1. Count 2 -- Lewd Act on New Year's Eve 1996
At the time she testified in defendant's trial, A.T. was a 24-year-old social worker. On New Year's Eve of 1996, when A.T. was 13 years old, she went on a camping trip to Big Bear with a Vietnamese community organization and stayed in a two-story cabin with about 30 or 40 people, including defendant. Defendant was a close friend of A.T.'s family and an active member of the community. A.T. "looked up to him as a big brother."
A.T. did not drink any alcohol that night. After the New Year's Eve countdown and celebration, everyone sat down in the living room with the lights off and started telling scary stories. There were about 20 to 25 people in the room. A.T. was sitting next to defendant on the floor leaning against a couch, with people sitting next to and in front of them (about one to four feet away) and two people on the couch behind them. Defendant placed a blanket over A.T. and himself. "He started rubbing [her] arms, and then he started rubbing [her] feet and just moving up [her] legs.... [A.T.] didn't know what to do or think. And then he got to [her] jeans, and he unzipped [her] jeans and he put his hand in there." He rubbed her vaginal area over her underpants. She used both her hands to try to remove his hand, but he "was too strong." She did not say "anything to stop it." She "just sat there crying, trying to pull [his hand] out." This went on for 10 or 15 minutes. He finally stopped when someone turned on the lights.
Before that day, defendant had always been "very touchy with [A.T.], holding hands, hugging" her. Once, when A.T. was around 12, defendant gave someone a ride home from his office and A.T. drove with him. "After he dropped that person home, he drove [A.T.] into his neighborhood, parked the car, unfastened [her] seat belt and tried to kiss" her, but she refused.
Around three months after the Big Bear incident, defendant apologized to A.T. About two years after the molestation, A.T. told her sister, Tammy, about it. When A.T. was in her second year of college, she and her best friend were "training to be... sexual crisis counselor[s]." A.T. became inspired to report the Big Bear incident, so she and her friend "went to the Westminster Police Department and attempted to file a report." A.T. was told she would have to file her report in Big Bear. She did not do so. But, in 2004, A.T. was contacted by an Orange County sheriff's investigator.
2. Count 1 -- Forcible Rape in February 2004
In 2002 or 2003, L.T. met defendant on a jet skiing trip. She told him she would be planning a group sky diving trip when she turned 18; he said he was interested and gave her his phone number.
In February 2004, when L.T. was a 17-year-old high school student, she saw defendant at the Tet Festival. She had phoned him prior to this second meeting. He invited her on a date and they went out to dinner and a movie that night.
After the movie, he asked if she wanted to go to his print shop to see a mini motorcycle. Around 10:00 p.m. or later, they entered the dark print shop. He told her to sit on a couch; there, he started kissing her. She was "really scared." "He said that it wasn't going to go any further, and [she] just kind of sat there and let him kiss [her]. And then he started unbuckling his pants, and that's when [she] used [her] hands just a little bit. [¶] And he said there's nothing that is going to happen. He said that [they] were just going to kiss. [¶] And [she] just kind of laid there and cried." Twice she said, "No." She was a virgin.
He started to take off her pants and she "froze." He touched her vagina. He put his penis in her vagina. It hurt and she told him so. At some point, he finished. He gave her a towel, they put their clothes on, and he drove her back to her car. He said he would call her.
L.T. drove around, phoning her friend, Mike Vu, but he did not answer his phone. Finally, Mike answered. They met and she "told him what happened." He told her she should "report it, but [she] didn't want to." She did not want her parents to know and to react by being overprotective of her younger sisters.
She "felt sore for a couple [of] days." A few days later a friend took L.T. to a clinic where L.T. told the nurse she'd been raped. Her vagina was examined and then she talked with a counselor. The pelvic examination revealed "a small mucosal tear on the right labia"; her internal exam was normal. The nurse practitioner testified that "[i]t takes a lot of force to tear even a young person."
L.T. told another friend about the rape. The friend told his girlfriend, Tammy. L.T. had a conversation with Tammy "that convinced [L.T.] to go to the police." L.T. went to the police station with Tammy and reported the incident. Shortly before filing the police report, L.T. learned that defendant was engaged to someone else.
At the request of a police detective, L.T. made a covert phone call to defendant. During the call, defendant told L.T. not to think or talk about "that night" and to "[j]ust keep it for a souvenir." L.T. stated she had cried that night, and that defendant had said he "wouldn't do it." Defendant replied, "That's true." "I tried not to do it." L.T. recalled slapping and stopping his hands. Defendant said, "[S]ometimes things get -- get out of hand." He promised, "Next time I will control it," and added, "Just call that a night to remember."
Uncharged Conduct with T.V.*fn2
At the time T.V. testified in defendant's trial, she was age 37, married with two children, and had a masters' degree in business administration.
In 1987, when T.V. was a 17-year-old high school student, she began dating defendant (who was an adult advisor in T.V.'s high school organization). T.V.'s parents did not allow her to date at that time so she did not tell them about it. Defendant told T.V. he was 21 years old. (Defendant is actually only one-year-older than T.V.) At that time, defendant was "really nice," "had a great sense of humor," seemed kind, and stated he was attracted to T.V. because she "was a good Catholic girl...."
Defendant was T.V.'s boyfriend for four years. For the first few months, they dated and were not intimate. Then T.V. confided in defendant that she had been molested when she was a girl by a boarder in her home, but she was still a virgin. Soon after that, she and defendant had sex, even though she was not ready and did not believe in premarital sex. She cried and he said he was sorry.
Defendant seemed "a little obsessive," took actions that confused and scared T.V., and would get jealous about "the simplest things." He "seemed to know what was going on with [her], even when [he wasn't] there," as though he had a spy. Defendant "was really strong," had a black belt in martial arts, and had been a lightweight wrestler in high school. Once he forced her to sit by him in church by grabbing her breast and threatening to "grab [her] breast in front of everyone" if she did not comply.
T.V. tried to break up with defendant, but "he would say he couldn't live without [her] and that he would kill himself or something like that." Once "he took half a bottle of... jumbo-sized aspirin" in front of her and "got really, really sick." He would say he wanted to marry her. She would "resolv[e] to try to make it work with him."
T.V. confided in Travis (her future husband) her concerns about her relationship with defendant and leaving the relationship. Travis and T.V. were leaders in the church Scouts. Travis asked T.V. out, but she "told him [she] had a boyfriend and... just wanted to be friends" with Travis. Travis replied ...