People v. Nguyen CA6

Filed 1/27/15 P. v. Nguyen CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H040509 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1235177)

v.

HIEN TRI NGUYEN,

Defendant and Appellant.

I. INTRODUCTION $240 was the minimum restitution fine for a felony conviction under Penal Code section 1202.4, subdivision (b)(1)1 in 2012 when defendant Hien Nguyen attempted to murder a coworker at a building supply store by clubbing him once in the back of the head with a drywall hammer. The resulting charges were resolved by a plea agreement. There was no objection at the change of plea hearing when the trial court advised defendant that he would be subject to various fines and fees, including “a restitution fund fine in the minimum amount of $264 and a maximum of $10,000.” There was no objection at the sentencing hearing when the trial court imposed “the minimum. It’s going to be $264,” even though defense counsel had just identified the minimum fine as $240. We may assume defense counsel and the trial court had in mind that section

1 Unspecified section references are to the Penal Code.

1202.4, subdivision (l) authorizes a county to impose a fee of up to 10 percent for the actual administrative cost of collecting a restitution fine, in other words, up to $24 for each $240 collected for a total of $264. On appeal defendant contends that his restitution fine should be $240, and it was ineffective of defense counsel not to say so. The Attorney General responds that the objection was forfeited and that there may have been a tactical reason for not objecting. Because no error by the trial court or defense counsel appears, we will affirm the judgment. II. TRIAL COURT PROCEEDINGS According to testimony at the preliminary examination, the charges were based on the following conduct. While working at a building supply store in June 2012, defendant appeared unusually serious to his supervisor, who inquired and was told by defendant that a coworker, Angel Dominguez Jr., had scolded him or told him off. Dominguez worked at the sales counter, while defendant was a stocker and runner. The supervisor told defendant not to be upset, he would talk to the manager about it. At the end of defendant’s shift, he clocked out, retrieved an 18-inch drywall hammer from his car, and returned to the store. Around 4 p.m., a customer noticed defendant walking quickly in the store expressionless and carrying a tool. The customer lost sight of defendant behind the counter for a moment. He reappeared behind Dominguez, who was at the counter working on a computer. Defendant, with an angry expression, held the hammer in both hands and swung it like a baseball bat, striking Dominguez once in the back of the head and knocking him bleeding to the ground. Defendant remained in the area until the police arrived. The incident was recorded on video-camera. Dominguez had seizures while being transported to the hospital. He survived and was hospitalized for five days with no recollection of the attack or the several days following it. He has a six or seven- inch scar on his head and was unable to work for several months.