People v. Nguyen CA6

Filed 11/15/21 P. v. Nguyen CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H049233 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC627077)

v.

JOHN NGUYEN,

Defendant and Appellant.

I. INTRODUCTION Convicted in 2007 of attempted murder (Pen. Code §§ 664, subd. (a), 187)1 with firearm (§ 12022.53, subd. (d)) and great bodily injury enhancements (§ 12022.7, subd. (a)) found true and sentenced to 5 years consecutive to 25 years to life, defendant John Nguyen appeals from a postjudgment order denying his request to modify the fourth amended abstract of judgment. Defendant contends that separate abstracts of judgment are required for his determinate and indeterminate terms. The Attorney General asserts that separate abstracts of judgment were prepared by the trial court. However, the Attorney General requests that we direct the abstract of judgment on defendant’s determinate sentence (determinate abstract of judgment) be modified to strike the term “1st degree.” In

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

addition, regarding the abstract of judgment on defendant’s indeterminate sentence (indeterminate abstract of judgment), the Attorney General “questions whether the determinate offense should even be listed in the indeterminate abstract.” For reasons that we will explain, we will direct the trial court to amend the fourth amended determinate abstract of judgment by striking the term “1st degree” in item 1 and to amend the fourth amended indeterminate abstract of judgment by replacing the number “5” in the “consecutive” box in item 1 with an “X.” II. PROCEDURAL BACKGROUND 2 In 2007, a jury convicted defendant of attempted murder (§§ 664, subd. (a), 187; count 1) and found true the allegations that defendant personally and intentionally discharged a firearm (§ 12022.53, subd. (d)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). The jury found not true the allegation that the attempted murder was willful, deliberate, and premeditated (§ 189). The trial court sentenced defendant to 5 years for attempted murder and 25 years to life for the firearm enhancement and stayed the sentence on the great bodily injury enhancement. On appeal, this court ordered the abstract of judgment modified by striking the words “1st degree” and adding “5” in the consecutive column for the sentence on count 1, and affirmed the judgment as modified. 3 (People v. Nguyen (Jan. 5, 2010, H032459) [nonpub. opn.] (Nguyen).)4 In 2017 and 2018, the California Department of Corrections and Rehabilitation (CDCR) alerted the trial court to possible errors in the abstract of judgment. The trial court amended the abstract several times.