State v. Duong

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
14-JUN-2022
07:53 AM
Dkt. 55 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
DEREK DUNG HUNG DUONG, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2PC151000138(1))

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)

Defendant-Appellant Derek Dung Hung Duong (Duong)

appeals from the August 2, 2018 Judgment; Conviction and

Probation Sentence; Terms and Conditions of Probation; Notice of

Entry (Judgment) in the Circuit Court of the Second Circuit

(Circuit Court).1

On March 2, 2015, Plaintiff-Appellee the State of

Hawai#i (State) charged Duong by felony information with four

1
The Honorable Rhonda I.L. Loo presided.
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counts: (1) Place to Keep Unloaded Firearms Other Than Pistols

and Revolvers in violation of Hawaii Revised Statutes (HRS)

§ 134-24(a) (2011);2 (2) Place to Keep Pistol or Revolver in

violation of HRS § 134-25(a) (2011);3 (3) Place to Keep

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HRS § 134-24(a) provides:

§ 134-24 Place to keep unloaded firearms other than
pistols and revolvers; penalty. (a) Except as provided in
section 134-5, all firearms shall be confined to the
possessor's place of business, residence, or sojourn;
provided that it shall be lawful to carry unloaded firearms
in an enclosed container from the place of purchase to the
purchaser's place of business, residence, or sojourn, or
between these places upon change of place of business,
residence, or sojourn, or between these places and the
following:
(1) A place of repair;
(2) A target range;
(3) A licensed dealer's place of business;
(4) An organized, scheduled firearms show or
exhibit;
(5) A place of formal hunter or firearm use training
or instruction; or
(6) A police station.
"Enclosed container" means a rigidly constructed
receptacle, or a commercially manufactured gun case, or the
equivalent thereof that completely encloses the firearm.
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HRS § 134-25(a) provides:

§ 134-25 Place to keep pistol or revolver; penalty.
(a) Except as provided in sections 134-5 and 134-9, all
firearms shall be confined to the possessor's place of
business, residence, or sojourn; provided that it shall be
lawful to carry unloaded firearms in an enclosed container
from the place of purchase to the purchaser's place of
business, residence, or sojourn, or between these places
upon change of place of business, residence, or sojourn, or
between these places and the following:
(1) A place of repair;
(2) A target range;
(3) A licensed dealer's place of business;
(4) An organized, scheduled firearms show or
exhibit;
(5) A place of formal hunter or firearm use training
or instruction; or
(6) A police station.
"Enclosed container" means a rigidly constructed
receptacle, or a commercially manufactured gun case, or the
equivalent thereof that completely encloses the firearm.

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Ammunition in violation of HRS § 134-27(a) (2011);4 and (4)

Criminal Property Damage in the Second Degree in violation of HRS

§ 708-821(1)(b) (2014).5

On May 2, 2018, prior to trial, Duong entered a no

contest plea to all four counts pursuant to a plea agreement with

the State, and Duong moved to defer acceptance of his no contest

4
HRS § 134-27(a) provides:

§ 134-27 Place to keep ammunition; penalty. (a)
Except as provided in sections 134-5 and 134-9, all
ammunition shall be confined to the possessor's place of
business, residence, or sojourn; provided that it shall be
lawful to carry ammunition in an enclosed container from the
place of purchase to the purchaser's place of business,
residence, or sojourn, or between these places upon change
of place of business, residence, or sojourn, or between
these places and the following:
(1) A place of repair;
(2) A target range;
(3) A licensed dealer's place of business;
(4) An organized, scheduled firearms show or
exhibit;
(5) A place of formal hunter or firearm use training
or instruction; or
(6) A police station.
"Enclosed container" means a rigidly constructed
receptacle, or a commercially manufactured gun case, or the
equivalent thereof that completely encloses the ammunition.
5
HRS § 708-821(1)(b) provides:

§ 708-821 Criminal property damage in the second
degree. (1) A person commits the offense of criminal
property damage in the second degree if by means other than
fire:

. . . .

(b) The person intentionally or knowingly damages
the property of another, without the other's
consent, in an amount exceeding $1,500[.]

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plea pursuant to HRS § 853-1(a) (2014)6 (DANC). On August 1,

2018, at a continued sentencing hearing, Duong decided to "take

the conviction," instead of accepting a DANC that would have

included 90 days of jail time, and the Circuit Court sentenced

Duong to terms of probation of four years on each of Counts 1, 2,

and 4, and one year on Count 3, with all terms to be served

concurrently.

Duong raises a single point of error on appeal,

contending that the Circuit Court erred in denying his motion for

DANC. Duong acknowledges that the Circuit Court did not in fact

deny his motion, but rather that the court indicated that it

would grant the motion subject to 90 days in jail. The Circuit

Court gave Duong the alternative option of withdrawing his

request for a DANC and being sentenced to probation, with no jail

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HRS § 853-1 provides, in relevant part:

§ 853-1 Deferred acceptance of guilty plea or nolo
contendere plea; discharge and dismissal, expungement of
records. (a) Upon proper motion as provided by this
chapter:
(1) When a defendant voluntarily pleads guilty or
nolo contendere, prior to commencement of trial,
to a felony, misdemeanor, or petty misdemeanor;
(2) It appears to the court that the defendant is
not likely again to engage in a criminal course
of conduct; and
(3) The ends of justice and the welfare of society
do not require that the defendant shall
presently suffer the penalty imposed by law,
the court, without accepting the plea of nolo contendere or
entering a judgment of guilt and with the consent of the
defendant and after considering the recommendations, if any,
of the prosecutor, may defer further proceedings.
(b) The proceedings may be deferred upon any of the
conditions specified by section 706-624.

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time. The latter option included a permanent record of his

convictions.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Duong's point of error as follows:

In essence, Duong contends that the Circuit Court

abused its discretion when the court indicated that it was only

willing to grant the motion to defer subject to a 90-day jail

term.

As set forth in footnote 6 above, HRS § 853-1(b)

specifically provides that a deferral "may be deferred upon any

of the conditions specified by section 706-624." HRS § 706-624

(2014) includes, in pertinent parts:

§ 706-624 Conditions of probation[.]

. . . .

(2) Discretionary conditions. The court may provide,
as further conditions of a sentence of probation, to the
extent that the conditions are reasonably related to the
factors set forth in section 706-606 and to the extent that
the conditions involve only deprivations of liberty or
property as are reasonably necessary for the purposes
indicated in section 706-606(2), that the defendant:
(a) Serve a term of imprisonment to be determined by
the court at sentencing . . . not exceeding
eighteen months in class B felony cases, not
exceeding one year in class C felony cases, not
exceeding six months in misdemeanor cases, and
not exceeding five days in petty misdemeanor
cases[.]

(Emphasis added).

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Also relevant here, HRS § 706-606 (2014) provides:

§ 706-606 Factors to be considered in imposing a
sentence. The court, in determining the particular sentence
to be imposed, shall consider:
(1) The nature and circumstances of the offense and
the history and characteristics of the
defendant;
(2) The need for the sentence imposed:
(a) To reflect the seriousness of the offense,
to promote respect for law, and to provide
just punishment for the offense;
(b) To afford adequate deterrence to criminal
conduct;
(c) To protect the public from further crimes
of the defendant; and
(d) To provide the defendant with needed
educational or vocational training,
medical care, or other correctional
treatment in the most effective manner;
(3) The kinds of sentences available; and
(4) The need to avoid unwarranted sentence
disparities among defendants with similar
records who have been found guilty of similar
conduct.

The Hawai#i Supreme Court recently provided guidance

concerning a trial court's broad discretion to consider the

circumstances of the offense and the defendant in making a DANC

determination, explaining:
In general, judges have broad discretion to consider
the facts and circumstances of the defendant and the offense
in making a DANC determination. . . .

[The appellant's] arguments cut against the principle
that judges have broad discretion in deciding whether to
grant DAG/DANC motions. As noted, HRS § 853-1(a) sets forth
the criteria a trial court should examine in its
determination, which are: (1) whether the defendant is not
likely again to engage in a criminal course of conduct; and
(2) whether the ends of justice and the welfare of society
require that the defendant presently suffer the penalty
imposed by law. In making these determinations, the court
may consider sentencing factors discussed in the PSI report,
including the "nature and circumstances of the offense and
the history and characteristics of the defendant." HRS §
706-606.

The role of the PSI report illuminates the importance
of judges taking the facts and circumstances into account.
These reports focus the judge's attention on matters
including "the circumstances attending the commission of the
crime" and "[t]he defendant's history of delinquency or

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criminality," see HRS § 706-602 (2014), which are also
relevant to the HRS § 853-1(a) factors.

In the DAG/DANC context, a court cannot intelligently
decide whether a defendant is likely to reoffend nor whether
their crimes merit immediate punishment without
understanding the nature of the offense and the defendant's
character and circumstances. Thus, judges not only may but
must consider the defendant's particular situation in DANC
proceedings as well as in sentencing. Cf. [State v.]
Martin, 56 Haw. [292,] 294, 535 P.2d [127,] 128 [(1975)]
(holding, in the DAG context, that "[d]iscretionary action
must be exercised on a case-by-case basis").

State v. Satoafaiga, 150 Hawai#i 406, 421-22, 504 P.3d 324, 339-

40 (2022).

Here, the charges that Duong had pled no contest to

included, in pertinent parts:

§ 134-24 Place to keep unloaded firearms other than
pistols and revolvers; penalty[.]

. . . .

(b) Any person violating this section by carrying or
possessing an unloaded firearm other than a pistol or
revolver shall be guilty of a class C felony.

§ 134-25 Place to keep pistol or revolver; penalty[.]

. . . .

(b) Any person violating this section by carrying or
possessing a loaded or unloaded pistol or revolver shall be
guilty of a class B felony.

§ 134-27 Place to keep ammunition; penalty[.]

. . . .

(b) Any person violating this section shall be guilty
of a misdemeanor.

§ 708-821 Criminal property damage in the second
degree[.]

. . . .

(2) Criminal property damage in the second degree is
a class C felony.

Thus, the offenses included one class B felony, two

class C felonies, and one misdemeanor. Under the statutory

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framework set forth above, in conjunction with a DANC the Circuit

Court had discretion -- upon considering the parameters of HRS

§ 853-1 and the factors set forth in HRS § 706-606 -- to impose a

term of imprisonment for the class B felony of up to eighteen

months, for the class C felonies of up to one year, and for the

misdemeanor of up to six months. The 90-day condition of

imprisonment indicated by the Circuit Court, while undisputedly a

significant burden on Duong, was well within the terms allowed

for the offenses.

The transcript of the July 25, 2018 sentencing hearing

clearly indicates that the Circuit Court's condition of

imprisonment for the DANC stems from the court's focus on the

circumstances attending the commission of the crime. The court

did not directly comment on Duong's likelihood to again engage in

a criminal course of conduct, but expressed concern that Duong's

conduct reflected "deep rooted anger problems." The Circuit

Court's comments on the circumstances included:
THE COURT: Okay. So your workers, whoever's working
on the house, called you that [trespasser] was back at your
house once again. And so you came rushing home, um, with
your firearm in your vehicle and at least -- and I
understand that you, first of all, asked her to basically
leave. And then she wouldn't leave. And I guess you -- I
guess when you kept asking her to leave and she wouldn't
leave, then that's -- that's when it kinda escalated here.
And, um, apparently you retrieved the gun from your
vehicle. I understand it was loaded. That you loaded it.
Um, put it in your pocket. And that's when she kind of ran
off to the side.
And then you proceeded to grab a pick axe. Yes?

[Dispute on when and how the trespasser left]

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THE COURT: Right. That's what I was thinking. She
left. So she ran off on foot or whatever, she ran off on.

[Duong's counsel]: Right.

The court then considered Duong's specific actions:
THE COURT: Okay. So the problem I'm having now is
you grab this pick axe and you start to smash her vehicle.
You smash her rear window. You smash her front headlights.
You go ahead dent the front hood. You damage the front bum
-- bumper.
And to me it's one of those riot videos that you see
on T.V. when these people rioting in the streets. And then
people just walking down the streets throwing fireballs and
getting bats and getting sticks and they start bashing
people's property.
That's what came into my mind, Mr. Duong. This is
your behavior. And I heard you say it was the, or else.
And you just reached your limit. This is the, or else.
So you started taking it out on this -- on this
vehicle. So you know what, you just -- my flabber is
completely gasted. I don't know what else to say. You went
overboard. You were out of control. You took -- you took
this matter into your own hands.
Now, I know your attorney has said that you called the
police before and basically nothing got done. So this is
how you reached your limit. But for someone to have a gun,
a loaded gun, not waving it around, but in their pocket.
Someone to get a pick axe and start destroying property.
And I'd love to see a picture of this destroyed van because
apparently we're at $9,000.00 and change -- . . .

. . . .

THE COURT: . . . But you just -- you know, you just
-- it was overboard. It was too much. You were beyond out
of control, Mr. Duong.

. . . .

You can not take these matters into your own hands.
Yes, we live in a very orderly society. Want to protect
everyone's rights. Victim's rights. Defendant's rights.
Your rights. [The trespasser's] rights. Everybody's rights
deserves to be protected.
So you can't met [sic] out what you believe is to be
justice by smashing her vehicle and having this firearm.
And I understand it was a registered firearm to you.
And now I understand that you were taking it back and forth
in your car because you didn't want it to get broken into
and stolen.
But you had a firearm loaded in your possession and
the, or else, is what bothers me. The or else. And that
you reached your limit.
But maybe if the police hadn't come -- hadn't come at
that particular time, I don't know what the what else would
have been. What the limit would have been. I don't know.
I don't know. Okay. And nothing happened. Nothing
happened with the firearm. I get it.

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. . . .

THE COURT: . . . -- it was too much. It was -- it
was -- it was really overreacted, Mr. Duong. I know you
were fed up. I get it. You were fed up. But you -- you
overreacted. And you damaged someone's property. And you
could have done more damage, but for the police came when
they came.
Now the deal's kind of an unusual deal about this
deferral and restitution. No jail and things along that
line. And I was trying to compare your case.
[The Circuit Court then referenced a prior case
sentencing in the court that day] Very sim -- not similar,
but he also had a firearm. And he whacked the victim in the
head. And he threatened him. And ended up taking his --
his cell phone and his keys.
And not -- not the same kind of damage that you did.
Your record's nowhere near [other case], but, um, I just
can't help but thinking this is the tip of the iceberg. And
that you have some deep rooted anger problems that you got
to get out of your system somehow. So --

Duong's counsel reiterated that Duong did not actually

pull the gun, and reiterated that this "sole incident" was a

result of the trespasser coming back to Duong's property and

"tormenting" him. Duong's counsel said that "he lost it that

day" but argued that it was "a one off kind of thing." The

Circuit Court's reaction to the argument was, "Put it mildly he

lost it." The court continued its explanation as to why the

court determined that Duong should either serve 90 days in

conjunction with a DANC or be sentenced to probation with no jail

time:
THE COURT: . . .
But the problem, Mr. Duong, is that you went too far.
You took it -- you took it to the violence -- the V level.
You went to the V word. You went to the violence level.
You know and I know you didn't point the gun at her or
shoot her or take the pick axe to her personally, but she's
standing there, or in the -- in the near area. And you take
this pick axe and you start to attack her car, smashing
windows, pounding on the hoods. You know, taking out the
front lights.
This is -- this is not -- this is crazy behavior.
This is over the top, overboard behavior.
And then you had this gun in your pocket that's
loaded. I'm not saying you pointed it at her. I'm not

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saying you were going to use it on her. But you felt
strongly enough to get the gun from your vehicle, load it,
put it in your pocket, and approach this vehicle and start
to attack this vehicle.
That's -- that's the problem, Mr. Duong. That --
that's the problem.

The Circuit Court considered further arguments of

defense counsel as to other alternatives (community service,

intermittent jail time), took a break in the proceedings to allow

Duong to consult his wife, and ultimately, continued the

sentencing hearing to allow Duong to research potential

collateral consequences of not taking the deferral, subject to

the 90-day jail term. However, the Circuit Court was unwavering

it its determination that, primarily, the nature and

circumstances of the offense, and characteristics of the

defendant as reflected in the circumstances, warranted the two

alternatives identified by the court.

We conclude that there was sufficient factual basis for

the court to determine to impose a term of imprisonment as a

punishment, with a DANC or separately from a DANC, and neither

determination would clearly exceed the bounds of reason or be in

disregard of rules or principles of law or practice to Duong's

substantial detriment. When Duong elected to take the

conviction, the Circuit Court, in its discretion, determined that

four years of probation, with terms and conditions and without

imprisonment, was sufficient punishment, and that decision also

did not clearly exceed the bounds of reason or disregard rules or

principles of law. State v. Pulgados, 148 Hawai#i 361, 365, 477

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P.3d 155, 159 (App. 2020) ("A judge has broad discretion in

matters related to sentencing [and] a trial court's sentencing or

resentencing determination will not be disturbed absent a 'plain

and manifest abuse of discretion in its decision.'").

Accordingly, and based on the entire record in this case, we

reject Duong's contention that the Circuit Court abused its

discretion or otherwise erred in its consideration of Duong's

motion for DANC.

For these reasons, the Circuit Court's August 2, 2018

Judgment is affirmed.

DATED: Honolulu, Hawai#i, June 14, 2022.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
David A. Sereno,
for Defendant-Appellant. /s/ Katherine G. Leonard
Associate Judge
Gerald K. Enriques,
Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
County of Maui, Associate Judge
for Plaintiff-Appellee.

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