P. v. Nguyen CA4/3

Filed 3/4/13 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v. G046140

HAC NHU NGUYEN, (Super. Ct. No. 10WF2235)

Defendant and Appellant. OPINION

Appeal from a judgment of the Superior Court of Orange County, William D. Claster, Judge. Affirmed. Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant was convicted of burglary and making a criminal threat against his former girlfriend Lan Phan. On appeal, he contends there is insufficient evidence to support the latter conviction and his attorney was ineffective for failing to challenge the prosecutor‟s characterization of the evidence in closing argument. He also alleges evidentiary, instructional and sentencing error. Finding his arguments unavailing, we affirm the judgment. FACTS Phan dated appellant on and off over a period of years. But, by July 2010, she had permanently broken up with him, and they had not talked in over a year. So when appellant showed up at her house on July 23, she was quite surprised. She invited appellant inside to talk, but he was in no mood. His manner was rude and angry, and his aggressive body language made Phan very uncomfortable. After a few minutes, she asked him to leave. When he refused, she yelled for her roommate Daryl Ramos, who confronted appellant. Appellant argued with Ramos briefly but departed after Ramos threatened to call the police. Four days later, on the night of July 27, appellant returned to the house. Phan, who lived in a converted bedroom in the garage, was watching television on her bed when appellant barged into her room without notice. He pulled her off the bed and began dragging her across the floor. Phan screamed for help and tried to resist, but appellant was too strong. Grabbing Phan by the hair, he dragged her out of the garage and all the way to the street. He called Phan – inexplicably – a “motherfucker” and threatened to beat her up and kill her. Hearing the commotion, Ramos ran outside to see what was going on. On the walkway near the street, he saw appellant kneeling on top of Phan, hitting her. Ramos confronted appellant, chased him away and called 911. When the police arrived,