PEOPLE v. NGUYENNo. H035586.

THE PEOPLE, Plaintiff and Respondent,
v.
TRUNG MANH NGUYEN, Defendant and Appellant.

Court of Appeals of California, Sixth District.
Filed November 17, 2010.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

BAMATTRE-MANOUKIAN, Acting P.J.

I. INTRODUCTION

After a jury trial, defendant was found guilty of three felony counts of robbery in the second degree (Pen. Code, §§ 211, 212.5, subd. (c)).1 The jurors deadlocked on allegations that defendant had personally used a firearm in the commission of each robbery (§ 12022.53, subd. (b)) and the trial court subsequently granted the People's request for dismissal of the firearm allegations. The trial court imposed a total term of five years in the state prison.

Defendant filed a timely notice of appeal, and we appointed counsel to represent him in this court. Appointed counsel has filed an opening brief that states the case and facts but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. The 30-day period has elapsed and we have received no response from defendant.

Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme Court's direction in People v. Kelly, supra, 40 Cal.4th at page 110, we provide "a brief description of the . . . procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed."

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

Our summary of the facts is taken from the reporter's transcript of the jury trial.

The first robbery took place on August 30, 2008. After meeting a couple of friends at a restaurant in the Santana Row shopping center, Mahssa Jahandary left the restaurant at about 10:30 or 11:00 p.m. As Jahandary and a friend were walking towards her car, defendant walked up to her, held a shiny black pistol to her face and said, "`Give me your purse.'" Jahandary was very frightened. When she did not immediately respond, defendant repeated his demand for her purse, then grabbed it and ran away. As a result of the robbery, Jahandary lost $200 in cash. Her cell phone was later returned by the police. When asked about defendant's gun, Jahandary stated that she was familiar with both BB pellets and bullets and she had no doubt that the gun barrel was big enough for a bullet.

The second robbery occurred on the evening of August 31, 2008, also at the Santana Row shopping center. After having drinks and hors d'oeuvres with friends at a restaurant, Mary McCormick left at about 9:15 p.m. to go to her car in a shopping center parking lot. She was carrying her purse and some leftovers while talking on her cell phone. As she approached her car, defendant came towards her, pointed a semiautomatic gun at her head, and said, "`Give it up, give it up'." McCormick was afraid of being killed. She screamed, "`Take it,'" and threw her purse and her cell phone a couple of feet away. Defendant grabbed her purse, which contained her Social Security card and credit cards, and also grabbed her cell phone. McCormick later recovered her Social Security card and one credit card after someone found them stashed in a bush near Hostetter Road.

The third robbery occurred on September 23, 2008, at about 10:30 p.m. when Nkiruka Nifeoma Onyedika was returning to her home in San Jose after an appointment in San Francisco. As Onyedika walked alone from the light rail stop to her apartment, while carrying her purse, cell phone, and laptop computer, she saw defendant get out of a white Honda Accord and come towards her. Defendant then attempted to grab her purse. Onyedika resisted for one or two minutes until defendant pulled out a shiny black gun. When Onyedika stopped resisting, defendant put the gun away. However, Onyedika refused to give up her purse and defendant shoved her to the ground. While Onyedika was lying face up on the ground, she fought with defendant by hitting him with her laptop. Defendant pulled the gun out again and Onyedika let him take her purse, which contained $20 in cash, her Social Security card, and her credit cards. After obtaining the purse, defendant ran to the passenger side of the Honda Accord, which sped off.

As Onyedika was lying on the ground, she was able to memorize the Honda Accord's license plate number, which she reported to the San Jose police officer, Sergeant Anthony Weir, who was called to the scene. Sergeant Weir obtained the name of the registered owner of the Honda Accord by running the license plate number in the computer in his patrol vehicle. Sergeant Weir then showed Onyedika a photograph of the registered owner from the computer's photo system. Onyedika identified the man in the photograph as defendant, the man who had robbed her.

During the ensuing police investigation of the robberies, Detective David Woolsey of the San Jose Police Department viewed a surveillance video of the Santana Row parking lot where the robbery of Mary McCormick occurred. At the date and time of the robbery, the video showed a Honda-style car speeding out of the parking lot. Detective Toshi Hata of the San Jose Police Department searched defendant's silver Honda Civic after defendant's arrest on September 25, 2008. Detective Hata recovered Onyedika's credit cards, Social Security card, and driver's license from the driver-side door compartment. In the trunk, Detective Hata found McCormick's cell phone. When defendant was arrested, Jahandary's cell phone was found on his person. However, the gun used in the robberies was never recovered.

B. Procedural Background

On September 30, 2008, a felony complaint was filed that charged defendant with three felony counts: (1) robbery in the second degree (§§ 211, 212.5, subd. (c); count 1) on August 30, 2008, involving alleged victim Mahssa Jahandary; (2) robbery in the second degree (§§ 211, 212.5, subd. (c); count 2) on August 31, 2008, involving alleged victim Mary McCormick; and (3) robbery in the second degree (§§ 211, 212.5, subd. (c); count 3) on September 23, 2008, involving alleged victim Nkiruka Onyedika. As to each count, the complaint included the allegation that defendant had personally used a firearm in the commission of the offense. (§ 12022.53, subd. (b)).

After a preliminary hearing held on February 23, 2009, defendant was held to answer on all counts. The information was filed on March 5, 2009. On April 8, 2009, the trial court heard and denied defendant's Marsden motion. (People v. Marsden (1970) 2 Cal.3d 118.)

The matter proceeded to a three-day trial on December 1, 2009. All three robbery victims, including Mahssa Jahandary, Mary McCormick and Nkiruka Onyedika, testified at trial, as did San Jose Police Officers David Woolsey, Toshi Hata and Anthony Weir. Defendant presented a firearms expert, senior forensic scientist Kenton S. Wong, who testified that many BB guns are "startlingly realistic in their detail and the look of real firearms," such that even law enforcement officers may have difficulty distinguishing a BB gun from a real gun when the guns are seen at a distance.

On December 8, 2009, the jury foreperson advised the trial court that the jurors had reached an impasse on the allegations that defendant had used a firearm in the commission of each robbery. The trial court suggested that the jurors try alternative methods of deliberation. After further deliberations took place, the jury foreperson informed the trial court on December 8, 2009, that the jurors were deadlocked on the firearm allegations and additional deliberations would not resolve the issue. The jury then returned their verdicts of guilty on all three robbery counts. Subsequently, on February 25, 2010, the People requested dismissal of the firearm allegations.

Sentencing took place on April 28, 2010. The trial court imposed the middle term of three years on count 1 (§ 213, subd. (a)(1)(B)(2)) and consecutive sentences of one year (one-third the middle term) on counts 2 and 3, for a total term of five years. The court also awarded a total of 668 days of presentence custody credit, including 581 actual days and 87 days pursuant to section 2933.1. Defendant was ordered to pay victim restitution (§ 1202.4, subd. (f)) of $398 to Mahssa Jahandary and a restitution fine (§1202.4) of $3,000. The court also imposed and suspended a $3,000 parole revocation restitution fine (§ 1202.45). Additionally, the court ordered defendant to pay a court security fee of $90 (§ 1465.8, subd.(a)(1)), a criminal conviction assessment fee of $90 (Gov. Code, § 70373), a criminal justice administration fee of $129.75 payable to the City of San Jose (Gov. Code, § 29550), and a $10 fine pursuant to section 1202.5. The trial court dismissed the firearm allegations (§12022.53, subd. (b)).

C. Appeal

Defendant filed a timely notice of appeal on May 12, 2010. Having carefully reviewed the entire record, we conclude that there are no arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d at pp. 441-443.)

III. DISPOSITION

The judgment is affirmed.

WE CONCUR.

MIHARA, J.

DUFFY, J.

FootNotes


1. All further statutory references are to the Penal Code unless otherwise indicated.

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