People v. Dang CA6

Filed 3/27/14 P. v. Dang CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039080 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC953164)

v.

PHUC NGUYEN DANG,

Defendant and Appellant.

INTRODUCTION Defendant Phuc Nguyen Dang appeals from an order extending his probation term. He claims that the trial court did not have jurisdiction to modify the probation term because there were no changed circumstances since the time of the original order. For the reasons stated below, we will affirm the order. BACKGROUND1 Defendant was in a dating relationship with the victim. On August 29, 2009, defendant and the victim got in an argument. Defendant took the victim’s phone and got into his car to leave. As defendant was backing out of the driveway, the victim jumped onto the hood of the car. Defendant drove down the street with the victim on the hood and then stepped on his brakes. The victim fell off the car and injured her head. At the

1 The factual background is taken from the probation report.

hospital, defendant initially told the police officers that the victim had been injured in a skateboarding accident. The victim had brain surgery later that evening. The surgeon said that the victim would survive but would never be the same. The surgeon indicated that if defendant had been truthful about the accident when he first arrived at the hospital, some damage could have been prevented. In March 2010, defendant pleaded no contest to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))2 and admitted the allegation that he personally inflicted great bodily injury during the commission of a domestic violence felony (§ 12022.7, subd. (e)). Defendant signed a plea form, which specified that the maximum sentence for his offense was nine years. The plea form also stated that he would have to pay restitution to the victim. At the change of plea hearing, defense counsel indicated that he informed defendant that he “could be required to pay restitution which could be significant in this case.” At sentencing on April 2, 2010, the trial court suspended imposition of sentence and placed defendant on probation for three years with various conditions, including that he serve 364 days in jail, pay various fines and fees, and pay victim restitution in the amount of $139,915.78. Defendant was referred to the Department of Revenue for a determination of the ability to pay the fines and fees. The court did not make an order regarding a payment plan for victim restitution. On July 19, 2010, at a domestic violence probation review hearing, defendant expressed that he had difficulty with the $186 monthly payments of the fines and fees he was ordered to pay the Department of Revenue. The trial court reduced the monthly payment amount to $50, and it stayed those fines and fees until July 1, 2011. The court noted that the “direct restitution payment to [the] victim for losses that she sustained, that isn’t stayed. You still need to make that right with the victim.”