P. v. Nguyen CA3

Filed 5/20/13 P. v. Nguyen CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yolo)

----

THE PEOPLE, C068944

Plaintiff and Respondent, (Super. Ct. No. CRF102350)

v.

HOANG CONG NGUYEN,

Defendant and Appellant.

A jury found defendant Hoang Cong Nguyen guilty of multiple violent crimes, including assault with intent to commit rape during a burglary (Pen. Code,1 § 220, subd. (b)) and attempted rape (§§ 21a, 664, subd. (a), 261, subd. (a)(2)). The jury also found true multiple sentencing enhancement allegations, including enhancements for great bodily injury. The trial court sentenced defendant to an aggregate term of 19 years to life in state prison. On appeal, defendant contends the trial court erroneously instructed the jury regarding the infliction of great bodily injury during a sexual assault. He further

1 Further undesignated statutory references are to the Penal Code.

1

contends insufficient evidence supported the great bodily injury allegation as to count 8, a claim with which we agree. He adds a claim of error in the oral pronouncement of sentence and the resulting abstract of judgment, which the People concede and with which we agree. Our review of the record reveals an additional error that resulted in an unauthorized sentence--the trial court failed to order defendant to register as a sex offender under section 290. We will order the judgment modified and the abstract amended accordingly. As modified, we shall affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND Offense Conduct On May 6, 2010, defendant was in the apartment of Diem Trinh Dang, his ex- girlfriend, and her sister, Dao Nguyen Dang.2 He was alone with Dao. While sitting at her desk, Dao felt a “shocking sensation” under her right arm. Defendant grabbed Dao from behind and, while Dao was still seated, repeatedly shocked Dao with a stun gun as she struggled to get away from him. Dao was able to stand, but was not able to get away from defendant as he continued to shock her. As Dao and defendant struggled, Dao yelled for help several times and asked defendant to stop. He did not stop, and as they continued to struggle, he tried to undress Dao. Dao was able to reach a knife and stab defendant in the leg. Then, weak from the repeated shocks, Dao fell to the ground and lay motionless, hoping defendant would think she was unconscious. When Dao opened her eyes, she saw defendant‟s pants and underwear were around his ankles. She also saw defendant‟s penis. As she lay on the