P. v. Dinh

Filed 3/28/06 P. v. Dinh CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Stanislaus County. John G. Whiteside, Judge.

Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross and Susan Rankin Bunting, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

On October 19, 2004, an information was filed in the Superior Court of Stanislaus County charging appellant Lau Van Dinh with count I, attempted murder (Pen. Code,^[1] §§ 664/187); count II, assault with a deadly weapon (§ 245, subd. (a)(1)); and count III, battery on a spouse (§ 273.5). As to all counts, it was alleged appellant personally inflicted great bodily injury on the victim during the commission of the offenses (§ 12022.7, subd. (a)). Appellant pleaded not guilty and denied the special allegations.

On January 4, 2005, appellant's jury trial began. On January 5, 2005, the jury found appellant guilty of counts I through III, and found the special allegations true.

On March 2, 2005, the court denied probation and imposed the midterm of seven years for count I, with a consecutive three-year term for the enhancement, for an aggregate term of 10 years. The court stayed the terms and enhancements imposed as to counts II and III pursuant to section 654.

On March 21, 2005, appellant filed a timely notice of appeal.

FACTS

Hoang S. (Hoang) was married to appellant for approximately 20 years and they had four children. The family lived in Boston until Hoang and appellant separated. In 2003, Hoang and three of the children moved to Modesto, because her brother lived there. Hoang's fourth child remained with appellant. Appellant occasionally visited them but he did not live with them.

On the evening of August 13, 2004, Hoang was visiting a friend when appellant called her cell phone two or three times. Appellant asked if he could visit Hoang and the children at her house, and said he wanted to get back together. Hoang told appellant that he could not visit her. Hoang testified they both used calm voices during their cell phone conversations.

Around 11:00 p.m., Hoang returned to her small house. Her three sons--17–year old H., 14-year-old L., and 12-year-old M.--were playing videogames in her bedroom. Her nephew, A., was also there. Hoang went to her bedroom and went to sleep. Her son, L., stayed in her bedroom, sat on the bed, and watched television. M. and A. stayed up in the living room and watched television, and H. went to his own bedroom.

Around 2:00 a.m. on August 14, M. and A. were still watching television in the living room when appellant walked into the house through the front door. M. did not open the door for appellant, and was surprised because he thought the door was locked. Appellant did not say anything to M. and walked straight into Hoang's bedroom. M. and A. stayed in the living room.

Hoang testified that she had been asleep when she realized appellant had walked into her bedroom. The television was off and her son, L., was on the bed next to her. Hoang testified appellant woke her up, stood very close to her bed, and said he wanted to talk to her. Hoang testified that she thought appellant was drunk because she smelled beer on his breath and he spoke â€