People v. Ngo

Filed 3/28/14; Reposted to correct footnote numbering, no change to content CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H038673 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1083378)

v.

GIAI VAN NGO,

Defendant and Appellant.

Defendant Giai Van Ngo was first tried by jury in 2011 for the conduct at issue in this appeal. The jury hung on all counts, and defendant was tried again in 2012. The second jury found defendant guilty on four counts: Count One—sexual penetration with a child aged 10 or younger; Counts Two and Four—lewd or lascivious acts on a child by force; and Count Three—simple battery. (Pen. Code, §§ 288.7, subd. (b), 288, subd. (b)(1), 242, 243, subd. (a)).1 The court imposed a term of 15 years to life, consecutive to a determinate term of 12 years. On appeal, defendant raises three claims of instructional error arising out of the second trial. First, he contends that an erroneous unanimity instruction, by misstating “2009” as “2010,” allowed the jury to convict him on Count Four—an offense alleged to have occurred in 2009—based on separate conduct that occurred in 2010. Second, defendant contends the court failed to instruct the jury on the lesser included offense of attempted sexual penetration with respect to Count One. Third, defendant argues the

1 Subsequent undesignated statutory references are to the Penal Code.

court erroneously instructed the jury on general intent as to the charge of sexual penetration, a specific intent crime.2 We hold the court erred in all three respects, but find only the first two errors prejudiced defendant. Because the errors require reversal on only two counts, we will remand for resentencing and possible retrial on those counts only. As to Count One, we will give the prosecution the option of retrying defendant or accepting a conviction of attempted sexual penetration of a child aged 10 or younger. I. FACTUAL BACKGROUND In 2010, defendant was a 66-year-old fruit vendor living in a three-bedroom house in San José. He rented one bedroom of the house to N.T. (Mother) and her seven-year- old daughter, B.T.3 Defendant lived in his own, separate bedroom. The evidence concerns two incidents in which defendant touched B.T. while they were in the living room of the shared house. The first incident occurred on an unknown date in 2009. The second incident occurred on July 24, 2010. A. The 911 Call On July 24, 2010, Mother called 911 and told the dispatcher, through a Vietnamese interpreter, that defendant had touched B.T.’s stomach while holding her against her will. At trial,4 the prosecutor played an audio recording of the call for the jury and provided them with a transcript. Mother told the dispatcher that B.T. was scared and crying, that B.T. had hit defendant, and that B.T. was trying to push him away. The dispatcher instructed Mother