P. v. Nguyen and Nguyen

Filed 6/22/06 P. v. Nguyen and Nguyen CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeals from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant Ket Ken Nguyen.

Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant Ky Van Nguyen.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Kristen K. Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

After they were indicted on criminal charges, defendants Ket and Ky Nguyen waived their right to a jury and agreed to have the court decide their case based on the grand jury transcripts and other evidence. The court convicted them of burglary, conspiracy and street terrorism, and it found they acted for the benefit of a criminal street gang. Defendants contend the court erred by failing to advise them of their constitutional rights before they agreed to a bench trial. Ket also challenges the sufficiency of the evidence to support the gang charges. We reject defendants' claims and affirm the judgment.

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Using air and ground surveillance, the police observed defendants and codefendant Nghia Nguyen as they drove to the home of Quoclan and Giatrang Pham. The three men jumped the back wall, ransacked the residence, and took the Phams' gold and jewelry. When they returned to their vehicle, two undercover police officers blocked them in with their unmarked cars. Nghia tried to drive around the officers, but he hit their cars and was unable to escape. All three defendants were then arrested.

A grand jury indicted defendants for conspiracy to commit burglary, burglary, and two counts of aggravated assault on a peace officer. The grand jury also believed -- based on the testimony of a gang expert -- that defendants were members of, and acted to benefit, the Nip Family street gang.

Defendants pleaded not guilty and the matter was set for a jury trial. However, as the trial date neared, they waived their right to a jury trial and agreed to have the court hear the case. At that point, the prosecutor moved to have the grand jury transcripts and exhibits introduced into evidence for purposes of the court trial. Without objection, the court granted the motion. It then trailed the matter with the understanding that the parties intended to present further evidence as part of the bench trial.

When proceedings resumed, the parties stipulated that â€