P. v. Thepsombandith

Filed 12/12/06 P. v. Thepsombandith CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
VAN JUAN THEPSOMBANDITH,
Defendant and Appellant.
D047885
(Super. Ct. No. SCD189842)
APPEAL from a judgment of the Superior Court of San Diego County, Melinda J.
Lasater, Judge. Affirmed as modified.
A jury convicted Van Juan Thepsombandith of two counts of assault with a
firearm (counts 1 & 2: Pen. Code,1 § 245, subd. (b)), discharging a firearm in a grossly
negligent manner (count 3: § 246.3), being a felon in possession of a firearm (count 4:
§ 12021, subd. (a)(1)), being a felon in possession of ammunition (count 5: § 12316,
subd. (b)(1)), and assault with a deadly weapon by means of force likely to cause great
1 All further statutory references are to the Penal Code unless otherwise specified.

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bodily injury (count 6: § 245, subd. (a)(1).) The jury also found true allegations that: (1)
as to counts 1 and 2, Thepsombandith used a firearm within the meaning of section
12022.5, subdivision (a); (2) as to count 6, Thepsombandith personally used a deadly
weapon, a golf club, within the meaning of section 1192.7, subdivision (c)(23); and (3) as
to count 6, Thepsombandith inflicted great bodily injury within the meaning of section
12022.7, subdivision (a). Thepsombandith admitted having two prison priors within the
meaning of section 667.5, subdivision (b), and section 668. The court sentenced
Thepsombandith to a prison term of 24 years.
On appeal, Thepsombandith contends (1) the prosecutor committed misconduct in
closing argument by misstating the law on assault; (2) he was afforded ineffective
assistance of counsel because his trial counsel failed to object to the prosecutor's
misstatement of the law on assault; (3) the court's imposition of the upper term for the
count 1 use of a firearm enhancement violated Blakely v. Washington (2004) 542 U.S.
296 (Blakely); and (4) imposition of the gun enhancement on count 1 and the prison prior
enhancements resulted from an impermissible dual use of facts. He also asserts, and the
People agree, that the abstract of judgment must be corrected to reflect the proper Penal
Code provision under which the one-year enhancement was imposed on count 6. We
conclude that the judgment must be modified to reflect the proper Penal Code section
supporting the enhancement imposed on count 6. As modified, the judgment is affirmed.
FACTUAL BACKGROUND
Thepsombandith began dating Kathy Sayrath in December 2004. Thepsombandith
lived in a one-room "shack" located in the backyard of his parent's house. In March 2005

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Sayrath and Thepsombandith were both inside the shack. Sayrath was on the telephone
with a friend, stating that she wanted to end her relationship with Thepsombandith.
Thepsombandith overheard this conversation and became upset. Thepsombandith
ordered Sayrath to hang up the phone, which she did. Thepsombandith yelled at Sayrath
and began to act violently. He picked up a golf club and repeatedly struck Sayrath while
she was on the couch. Sayrath was struck in the leg, thigh, arm, and back. When Sayrath
put her arm up to defend herself from the attack, the golf club struck her arm, breaking it
between her wrist and elbow. Thepsombandith also stomped on and kicked Sayrath. The
beating continued until Sayrath lied and told Thepsombandith she was pregnant with his
child. Sayrath was subsequently treated at the hospital emergency room for her fractured
right forearm. Sayrath also suffered several bruises on multiple locations of her body.
Within a few days of the beating, Sayrath went back to Thepsombandith's
residence to recover her belongings. Sayrath was accompanied by her cousins, Sherry
Gonzales and Jennifer Souphy. Sayrath entered Thepsombandith's shack, while Gonzales
and Souphy waited outside in the backyard. Thepsombandith was alone inside the
residence when Sayrath entered. Thepsombandith told Sayrath to sit down so they could
talk. Sayrath complied, and the two talked briefly. Thepsombandith had a handgun next
to him underneath a towel. He moved the towel to expose the gun to Sayrath.
Thepsombandith told Sayrath that he was not afraid to shoot her and that he would
shoot himself as well. Thepsombandith held the barrel of the gun to Sayrath's temple
while he threatened her. Thepsombandith then pointed the gun in the air and fired one
shot. Sayrath screamed and Gonzales and Souphy, who heard the commotion, came

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running to the door of the residence. Gonzales opened the door and both women looked
inside. Gonzales observed Sayrath in a fetal position on the couch saying, "[N]o," while
Thepsombandith pointed the gun at her.
Thepsombandith then turned the gun and pointed it at Gonzales and said, "Are you
going to be a fucking hero?" While the gun was pointed at Gonzales, she observed
Thepsombandith cock back and release the slide. As Gonzales began to back out of the
shack, Thepsombandith's father and grandfather appeared. When Thepsombandith's
grandfather entered the residence, Sayrath exited, and the three women ran to their car.
While leaving the scene in their car, the women were stopped by police for not
having a rear license plate. The women informed the police about what had just taken
place at Thepsombandith's residence. During a search of Thepsombandith's shack later
that day, police officers discovered a shell casing on top of a speaker and a bullet hole in
the ceiling. Thepsombandith was not present.
That same day Thepsombandith called Gonzales and asked her why she had called
the police, that he thought she was his friend. Thepsombandith asked Gonzales to pick
him up from a nearby residence. Gonzales passed this information along to the police.
Police officers went to the residence where Thepsombandith was reported by Gonzales to
be located and found him hiding in a closet. Thepsombandith was subsequently arrested
and taken into custody.

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DISCUSSION
I. PROSECUTORIAL MISCONDUCT
Thepsombandith asserts that the prosecutor committed prosecutorial misconduct in
closing argument as to the count 2 assault with a firearm charge by telling the jury that
the gun did not have to be loaded for him to be convicted of this crime. We conclude that
(1) Thepsombandith waived this claimed error by failing to object to the prosecutor's
statements; and (2) even if there was no waiver, (a) there was no misconduct, (b) any
misconduct was harmless as the overwhelming evidence at trial showed that the gun was
in fact loaded, and (c) any misconduct was not so egregious that it denied
Thepsombandith his federal right to due process.
A. Background
In closing argument defense counsel raised the fact that Sayrath was not aware the
gun was loaded until after Thepsombandith fired it, misstating the law on assault: "The
knowledge of the deadly capacity, such as it were of this firearm, was only known after
the discharge. [¶] It never again was pointed at her. She never stated that the firearm was
pointed at her again. [¶] I dare say that if the firearm had been pointed at her a second
time, we'd have an assault on [Sayrath] by means of a firearm."
On rebuttal, in response to this argument by defense counsel, the prosecutor stated,
"Now, here's one you've got to be real careful with. [Sayrath] didn't know the gun was
loaded, so it can't be assault. Did you hear that?" The prosecutor went on to explain,
correctly, that Sayrath's knowledge was not an element of the charge of assault: "The
person committing the act -- that's him -- the person committing the act was aware of

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facts that would lead a reasonable person to realize that a direct, natural, and probable
result of this act, that physical force would be applied to another person. [¶] It doesn't
matter if [Sayrath] thought the gun was loaded or not. It played no role and needs not be
shown. [¶] . . . [¶] The fact is, he knew what was going on. He knew it was a gun; he
knew there were bullets in there; he was the one pulling the trigger."
In further discussing the count 1 assault against Sayrath, however, the prosecutor
then made the following statements: "It doesn't matter whether the gun was loaded or
not, you can still assault somebody with it. Okay? [¶] Also, there's no requirement that
the gun be loaded for an assault to be carried out. That's not an element of the assault
with a firearm." (Italics added.)
B. Waiver
In general, a claim of prosecutorial misconduct is waived where it has not been
raised in the trial court. (People v. Price (1991) 1 Cal.4th 324, 447; People v. Rowland
(1992) 4 Cal.4th 238, 274.) The only exception to this rule is where prompt admonition
by the trial court would not have cured the error. (People v. Rowland, supra, at p. 274.)
Only where the record shows misconduct, and the issue is preserved for appeal because
an objection would have been futile and an admonition would not have cured the harm,
must an appellate court determine whether on the total record the harm resulted in a
constitutional miscarriage of justice. (People v. Green (1980) 27 Cal.3d 1, 33-34,
overruled on another point in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3.)
There is no dispute that defense counsel did not object to the prosecutor's
statements that the gun need not be loaded for Thepsombandith to be convicted of assault

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with a firearm. Moreover, had defense counsel made a timely objection to the
prosecutor's statements and requested an admonition, the court could have cured any
harm resulting from the misstatements. The prosecutor could have then corrected any
misapprehension he had left with the jury. Because the harm resulting from any
misstatement could have been cured by an objection, Thepsombandith has waived the
right to assert prosecutorial misconduct on appeal.
C. Merits
Further, even if Thepsombandith's claim of prosecutorial misconduct was not
waived and we address his claim on the merits, no reversal is required.
1. Law governing prosecutorial misconduct
A broad scope of permissible argument is allowed: "'"'[A] prosecutor is given
wide latitude during argument. The argument may be vigorous as long as it amounts to
fair comment on the evidence, which can include reasonable inferences, or deductions to
be drawn therefrom. [Citations.]'"'" (People v. Hill (1998) 17 Cal.4th 800, 819.) A
prosecutor may not, however, misstate the law before the jury (People v. Bell (1989) 49
Cal.3d 502, 538) or "attempt to absolve the prosecution from its prima facie obligation to
overcome reasonable doubt on all elements [of the crimes charged] [citation]." (People v.
Marshall (1996) 13 Cal.4th 799, 831.)
Federal constitutional rights are implicated by prosecutorial misconduct only if it
is "'"so egregious that it infects the trial with such unfairness as to make the conviction a
denial of due process."'" (People v. Gionis (1995) 9 Cal.4th 1196, 1214.) "'Conduct by a
prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial

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misconduct under state law only if it involves "'"the use of deceptive or reprehensible
methods to attempt to persuade either the court or the jury."'" [Citation.]' [Citation.]"
(People v. Hill, supra, 17 Cal.4th at p. 819.)
2. Analysis
To be convicted of assault with a firearm the defendant must either (1) point a
loaded gun at another person; or (2) use a gun, loaded or unloaded, as a club or bludgeon.
(People v. Rodriguez (1999) 20 Cal.4th 1, 10-11 & fn. 3; People v. Fain (1983) 34 Cal.3d
350, 357, fn. 6.)
Thepsombandith does not assert that the prosecutor's statement that the firearm
need not be loaded was error as to count 1, where the victim was Sayrath, presumably
because his close proximity to the victim allowed for the opportunity to use the gun as a
bludgeon. However, he attacks the prosecutor's statement as to count 2, which was based
upon Thepsombandith pointing the gun at Gonzales, asserting that there is no evidence he
intended to use the gun against her as a bludgeon, and therefore the gun must be loaded.
Thepsombandith's assertion the prosecutor committed prejudicial attorney misconduct by
these statements fails for a number of reasons.
First, it is clear from the record that the prosecutor, when he made the statements,
was talking about count 1, not count 2. Thus, it is not reasonably likely that the jury
would have understood that the statement applied to count 2 as well, and there was no
misconduct.

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Further, even if the prosecutor's statement was general enough for the jury to
understand that it applied to both counts of assault, it was not prejudicial and did not
violate Thepsombandith's federal constitutional rights.
The evidence was overwhelming that when Thepsombandith pointed the gun at
Gonzales, it was loaded. It was loaded when he pointed it at Sayrath, as evidenced by the
fact that after pointing it at her, he fired the gun. Gonzales observed Thepsombandith,
after he fired the gun and while pointing it at her, pull the top of the gun back, then let it
go forward. That action sounded to Gonzales like "he was putting the bullet in the barrel.
I don't know what it's called. When you cock it back."
Based upon these facts, it is not reasonably probable that the jury convicted
Thepsombandith on count 2 while believing that the gun was unloaded when he pointed it
at Gonzales. Thus, the statement by the prosecutor, even if misconduct, was not
prejudicial.
Additionally, the challenged statement was one comment by the prosecutor in his
closing argument that consisted of 36 pages of transcript. It was not a pattern of
misconduct or conduct "'"so egregious that it infects the trial with such unfairness as to
make the conviction a denial of due process."'" (People v. Gionis, supra, 9 Cal.4th at p.
1214.)
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Thepsombandith asserts that even if his claim of prosecutorial misconduct was
waived by virtue of trial counsel's failure to object when the statements were made, he
may still raise the issue on appeal by asserting that trial counsel rendered ineffective

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assistance of counsel by failing to object. Thepsombandith contends ineffective
assistance of counsel is shown because there was no possible tactical reason for allowing
the prosecutor to misstate the law of assault. We reject this contention.
A. Applicable Legal Principles
A defendant claiming ineffective assistance of counsel has the burden to show:
(1) counsel's performance was deficient, falling below an objective standard of
reasonableness under prevailing professional norms; and (2) the deficient performance
resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland);
People v. Ledesma (1987) 43 Cal.3d 171, 216, 218 (Ledesma).) To establish prejudice,
the defendant must show it is reasonably probable a more favorable determination would
have resulted in the absence of counsel's failings. (Strickland, supra, at pp. 693-694;
Ledesma, supra, at pp. 217-218; People v. Sapp (2003) 31 Cal.4th 240, 263.)
In determining whether counsel's performance was deficient, we exercise
deferential scrutiny. (Strickland, supra, 466 U.S. at p. 689; Ledesma, supra, 43 Cal.3d at
p. 216.) The defendant must affirmatively show counsel's deficiency involved a crucial
issue and cannot be explained on the basis of any knowledgeable choice of tactics.
(People v. Jackson (1980) 28 Cal.3d 264, 289, disapproved on other grounds in People v.
Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) "'Reviewing courts defer to counsel's
reasonable tactical decisions in examining a claim of effective assistance of counsel
[citation], and there is a "strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance."'" (People v. Weaver (2001) 26 Cal.4th 876,

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925.) "[C]ourts should not second-guess reasonable, if difficult, tactical decisions in the
harsh light of hindsight." (People v. Scott (1997) 15 Cal.4th 1188, 1212.)
B. Analysis
We conclude Thepsombandith has failed to sustain his appellate burden of
demonstrating ineffective assistance of counsel. First, as discussed, ante, the statements
by the prosecutor were made in reference to count 1. It was a proper recitation of the law
as to that count. Defense counsel could reasonably have believed that the jury would
only understand the statements as applying to count 1, and, therefore, the failure to object
did not fall below an objective standard of reasonableness.
Assuming that the prosecutor's statement could only have been understood as
applying to count 2, and defense counsel was deficient in failing to object to the
statement, there was no prejudice sufficient to require a reversal. As discussed, ante, the
evidence was overwhelming that the gun was loaded when Thepsombandith pointed it at
Gonzales. Therefore it is not reasonably probable that Thepsombandith would have
received a more favorable result but for counsel's failure to object to the prosecutor's
statement. (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at
pp. 217-218; People v. Sapp, supra, 31 Cal.4th at p. 263.)
III. BLAKELY ERROR
Citing Blakely, supra, 542 U.S. 296, Thepsombandith contends he was denied his
federal Sixth Amendment constitutional right to a jury trial when the court imposed the
upper term on the count 1 firearm use enhancement based on facts beyond those found by
the jury.

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However, as Thepsombandith acknowledges, the California Supreme Court
rejected a similar contention in People v. Black (2005) 35 Cal.4th 1238, 1244, concluding
that "the judicial factfinding that occurs when a judge exercises discretion to impose an
upper term sentence or consecutive terms under California law does not implicate a
defendant's Sixth Amendment right to a jury trial." The Black majority explained that "in
operation and effect, the provisions of the California determinate sentence law simply
authorize a sentencing court to engage in the type of factfinding that traditionally has
been incident to the judge's selection of an appropriate sentence within a statutorily
prescribed sentencing range. Therefore, the upper term is the 'statutory maximum' and a
trial court's imposition of an upper term sentence does not violate a defendant's right to a
jury trial under the principles set forth in Apprendi, Blakely, and Booker."2 (Black,
supra, at p. 1254.) Stare decisis requires this court to follow Black. (Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Accordingly, we reject Thepsombandith's contention that the court erred by
imposing the upper term on the count 1 firearm use enhancement based upon facts
beyond those found by the jury.
2 Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely, supra, 542 U.S.
296, and United States v. Booker (2005) 543 U.S. 220 (Booker).

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IV. DUAL USE OF FACTS
Thepsombandith contends the court improperly relied on his prison priors to
impose the upper term on the count 1 firearm enhancement, arguing that this constituted
an impermissible "dual use" of facts. We reject this contention.
A. Background
Thepsombandith had two prison priors (1) taking a vehicle while in possession of
a gun (§§ 19851, subd. (a) & 12022, subd. (a)(1)); and (2) being in possession of a
firearm while on parole (§ 12021, subd. (a)(1)). He also had several juvenile
adjudications for burglary (§ 459), possession of a concealed firearm (§ 12025, subd.
(b)), and two instances of possession of burglary tools. (§ 366).
At sentencing the court imposed the upper term on the gun enhancement
(§ 12022.5, subd. (a)) on count 1. In doing so, the court stated:
"On the [section] 12022.5[, subdivision] (a) allegation I am going to
impose the upper term of six years. [¶] Now I think this is
significant. I have definite concerns about this defendant. [¶] This
is his fourth time of having a gun in his possession. There were
three other times. [¶] Everything that we did to convince him those
three other times that you're not to have a gun, obviously, didn't have
an impact, and he knew it. [¶] The gun is what makes this so
dangerous. [¶] I do think he has a lack of control, and he is
dangerous because of that. [¶] So, I think there is a legal basis for
that. [¶] I didn't use the priors on the actual [section] 245[,
subdivision (b)] count one core offense. [¶] So, it's not a double use.
I'm using only the [section] 12022.5 allegation."
B. Analysis
Section 1170, subdivision (b) provides in part: "The court may not impose an
upper term by using the fact of any enhancement which is imposed under [section

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667.5]." Thus, under section 1170, subdivision (b), courts cannot use the same prior
prison term as a basis to impose an enhancement under section 667.5 and as a factor in
aggravation in imposing an upper term on a conviction. (People v. St. Germain (1982)
138 Cal.App.3d 507, 524.)
However, the court did not engage in an improper dual use of facts in imposing the
upper term on the gun enhancement to count 1. In People v. Bejarano (1981) 114
Cal.App.3d 693, the trial court imposed an upper term sentence based upon the fact that
the defendant had numerous prior convictions. (Id. at p. 706.) The trial court also
imposed an enhancement under section 667.5 for a prior prison term. (Bejarano, supra,
at p. 706.) The Court of Appeal held that there was no improper dual use of facts because
(1) the defendant had at least six prior convictions, so the aggravated sentence could have
been established without the prior prison term; and (2) the fact used for the enhancement
under section 667.5 was a prior prison term, not merely a prior conviction. (Bejarano,
supra, at p. 706; see also People v. Hurley (1983) 144 Cal.App.3d 706, 709 ["A trial
court may use the facts of prior conviction, even where it underlies a prior prison term
enhancement, to help show numerous convictions under [California Rules of Court,] rule
421(b)(2) because this is not the fact on which enhancement is based"].)
Here, the court chose to impose the upper term on the firearm use enhancement
because Thepsombandith had been in possession of a gun on three previous occasions.
At no time did the court state, or even imply, that it relied on the fact that
Thepsombandith had been in prison for two of those gun possessions in imposing the
upper term. Therefore, the court did not rely upon Thepsombandith's prior

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imprisonments to impose both the upper term on the firearm enhancement and prior
prison term enhancements.
V. CORRECTION OF ABSTRACT OF JUDGMENT
The parties agree the abstract of judgment incorrectly reflects the Penal Code
provision under which the one-year enhancement was imposed on count 6. The abstract
of judgment indicates the court imposed a one-year enhancement on count 6 under
section 1192.7, subdivision (c). The trial transcript, however, indicates the court imposed
the one-year enhancement under section 12022.7, subdivision (a). Accordingly, the
abstract of judgment must be corrected to reflect that the one-year enhancement on count
6 was imposed under section 12022.7, subdivision (a).
DISPOSITION
The court is directed upon remand to correct the abstract of judgment to reflect the
fact that the one-year enhancement on count 6 was imposed pursuant to section 12022.7,
subdivision (a), and to forward a certified copy of the corrected abstract to the
Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NARES, Acting P. J.
WE CONCUR:
HALLER, J.
McINTYRE, J.

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