People v. Nguyen CA4/3

Filed 6/29/16 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G051805

v. (Super. Ct. No. 13WF1381)

KENNEDY NGUYEN, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed. Susan S. Bauguess, 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 and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent. * * *

A jury convicted Kennedy Nguyen of assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4) [counts 1 and 3]; all statutory references are to the Penal Code unless otherwise noted), and misdemeanor battery (§ 242 [count 2]). Nguyen contends there is insufficient evidence to sustain the assault convictions, and the trial court abused its discretion by declining to reduce one of the assault convictions to a misdemeanor (§ 17, subd. (d)). For the reasons expressed below, we affirm.

I FACTUAL AND PROCEDURAL BACKGROUND On the evening of May 8, 2013, Robert Varela was walking across the street when a gray Honda pulled up and a passenger rapidly fired several paintball rounds from close range. The projectiles struck Varela’s nose, head, hand, and back, breaking the skin and causing his nose to bleed. He experienced intense pain and believed he had been shot with a firearm. Varela, who suffered from muscular dystrophy, tried to flee, but fell down. The car returned and fired more rounds, striking him in the back and stomach. Varela was terrified, and told a police officer, “Please don’t let me die. Don’t let them come back and kill me.” Varela complained of pain on several parts of his body, and had orange paint on his hand and the back of his shirt. An ambulance transported Varela to the hospital, where he received treatment for welts and bruising to his hands, head, hip, and ring finger, and the open wound on his nose. At the time of trial, he still had a scar on his face from the shot that struck him in the nose. Officers located the Honda, which Nguyen drove. They found a paintball gun with wet orange paint and paraphernalia under the front passenger seat. Passenger David Nguyen’s (David) cell phone contained a text message to Nguyen from earlier in the day reading, “Let’s go paint ball.” Nguyen testified, and denied abetting the paintball assault. He claimed he and his friends fired the gun in David’s backyard. Later, they went to get food, and a