People v. Nguyen CA4/3

Filed 6/27/16 P. v. Nguyen CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G052002

v. (Super. Ct. No. 15WF0439)

TUAN ANH NGUYEN, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, John R. Zitny, Judge. Affirmed. Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Tuan Anh Nguyen took a four-inch bottle of wine worth less than two dollars from a drug store without paying for it. Nguyen was about ten feet out of the store when the store’s loss protection manager approached him about the theft. Nguyen took the bottle out of his pocket, unscrewed the cap and started drinking. When the loss protection manager told him he was going to phone the police, Nguyen said if he did, he would “come back and get” him. As the manager continued to phone the police, Nguyen used the bottle to make a striking motion toward him. Nguyen was arrested, and subsequently charged with one count of robbery. His defense was that he was too drunk and too small physically in relation to the manager to have put the manager in any sort of fear of harm. The jury did not convict him of robbery, but did convict him of the lesser included offense of attempted robbery. He was sentenced to three years of formal probation plus 180 days in jail, most of which (172 days) was consumed by time already served. He was also required to pay $70 in fees and a $300 restitution fine. On appeal, Nguyen does not challenge the substantiality of the evidence to convict him of attempted robbery. That evidence was overwhelming given the testimony of the loss protection manager who apprehended him. Rather, Nguyen points to a glitch in the proceedings as regards the notebooks that were given out to the jurors prior to the beginning of trial. Those notebooks were (inadvertently) not made available to them on the morning of oral argument. The judge rejected the defense’s mistrial motion, ruling the testimony that morning had been short, and in any event jurors could always ask for a read back of the oral argument.1 The Attorney General concedes it was error for the jurors not to have their notebooks available to them that morning. A California Rule of Court specifically requires jurors to be provided materials with which to take notes: “Jurors must be