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In Re Hank Nguyen On Habeas Corpus.

May 23, 2011

IN RE HANK NGUYEN ON HABEAS CORPUS.


Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals, Judge. (Super. Ct. No. M12941)

The opinion of the court was delivered by: Moore, J.

CERTIFIED FOR PUBLICATION

OPINION

Judgment affirmed.

In 1990, petitioner in the underlying matter, Hank Nguyen, murdered his former girlfriend, Tina Tham, who had broken off their relationship eight months earlier. On June 28, 1991, after the jury convicted Nguyen of murder, the court sentenced him to 15 years to life in state prison.

The Board of Parole Hearings (the Board) found Nguyen suitable for parole in June 2009. The Governor reversed the Board's decision, finding the crime "extraordinar[ily] callous, heinous and atrocious," that Nguyen has not fully accepted responsibility for the murder or developed a sense of genuine remorse.

Nguyen filed a petition for a writ of habeas corpus in the Orange County Superior Court seeking to overturn the Governor's action. The superior court granted the petition after issuing an order to show cause and considering the Attorney General's return and Nguyen's traverse.

Nguyen entered prison with no prior juvenile or adult criminal record, except the current offense for which he has accepted full responsibility and expressed sincere remorse. In prison, he successfully completed a panoply of courses to strengthen his mind and skills and increase his self-insight. He was discipline free during his entire incarceration, and kept himself busy working as a plumber and providing math tutoring to other inmates. The Board found Nguyen's institutional behavior "remarkable" and commented it could not "have asked for any more compliance or improvement." Apparently brushing aside Nguyen's accomplishments, the Governor found fault with a mental health evaluator for not exploring more about the cause of defendant's behavior.

It would, of course, have been beneficial to have an in-depth psychological evaluation of why Nguyen had reacted violently to feelings of rejection and being used. All of the Governor's cited reasons for reversing the Board, except for the evaluator's failure to delve deeper into the causes of Nguyen's violence, are belied by the evidence. Nguyen has done an exemplary amount of work to improve himself. He has studied domestic violence, coping mechanisms, anger management and self-improvement. The executive branch's failure to obtain the evaluation, the lack of which caused the Governor concern -- a failure that cannot be placed at Nguyen's feet -- does not amount to "some evidence" that Nguyen currently poses an unreasonable threat to the public if released from prison. Accordingly, we affirm.

I FACTS AND PROCEEDINGS

The Commitment Offense

We take the following facts about the commitment offense from our 1992 unpublished opinion in Nguyen's appeal from his conviction. (People v. Nguyen (G011230, Nov. 25, 1992).) Tina Tham did not show up for work at 11:00 a.m. on October 24, 1990. Tham's roommate, Trang Dang, returned home that evening and heard Tham's television blaring. Hearing no response when she knocked on Tham's door, Dang went outside Tham's bedroom and saw the window was open and a portion of the screen was loose. Dang climbed into the dark room, did not see anyone inside, turned off the television, closed the window, locked the door, and left. At Tham's sister's request, Dang went back into the room again. When Dang turned on the bathroom light she saw Tham's cold, stiff body on the floor. She had been strangled. Police lifted a fingerprint of Nguyen's from the outside of the bedroom window. The day after Tham's death, a police officer contacted Nguyen, who had a bandaged thumb. The officer asked to see the wound. It was a human bitemark.

Eight months before her murder, Tham had broken off the relationship with Nguyen. In the interim, he had "called her incessantly and followed her constantly, sometimes parking in front of her house." He was jealous of anyone she went out with and stubbornly continued in his attempts to reconcile, despite her telling him to leave her alone.

Two of Nguyen's former girlfriends testified to similar patterns of obsessive behavior after they broke off their relationships with Nguyen. One of the former girlfriends, Tam Pham, testified he threatened to kill her when she refused to see him. The brakes on her car failed once and Nguyen told her he had sabotaged them. Nguyen's ex-wife testified he had told her that but for the fact he loved his children, he would choke Pham to death. Hang Luu testified to an occasion when she was dating Nguyen and another man asked her to dance at a nightclub. In the car at the end of the night, Nguyen got angry, held her by the neck, and warned her that he would kill her if she ever left him. When she did break up with him, Nguyen was very angry. He followed her, telephoned her, and appeared at her door unannounced.

The jury found Nguyen guilty of first degree murder. At the time of sentencing on June 28, 1991, the trial judge reduced the offense to second degree murder and sentenced Nguyen to 15 years to life in state prison.

Initial Parole Consideration Report and Psychiatric Evaluation

A report signed on November 12, 1999 by two correctional counselors, stated that Nguyen "admits full responsibility for" the murder. Nguyen said he went to Tham's residence, they argued, he accused her of using him, she screamed, he put his hand over her mouth to quiet her, and she bit his thumb. A fight ensued and they ended up on the bed with Nguyen straddling Tham. "The next thing [Nguyen] knew she went limp and had quit screaming." He then took her into the bathroom so she would not be seen, and attempted to make it appear there had been a burglary. The report noted he had no prior criminal history and stated he had joined the Vietnam Irregular Forces at the age of 15. He joined the Vietnamese Army when he was 18 years old. He acted as an interpreter for recently captured Viet Cong prisoners interviewed for intelligence purposes. He received a Purple Heart and a Bronze Star prior to his medical discharge at the age of 27.

Nguyen has remained discipline free since his reception in state prison. His classification score was the lowest possible for any inmate serving a life sentence.*fn1 The report stated that Nguyen's "central file reflects an outstanding program from arrival into the Department of Corrections until the writing of [the] report, which includes his latest accomplishment of receiving his Associate Certificate in Electronics Technology." Nguyen had a residence and job arranged in the event he would be paroled.

The counselors concluded Nguyen "would pose a low degree of threat to the public at this time if released from prison . . . ." The report recommended Nguyen continue his discipline free behavior, continue ...


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