P. v. Nguyen

Filed 5/31/06 P. v. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed.

Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ron Jakob and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant Si Tien Nguyen challenges his sentence of an indeterminate term of life in prison for attempted murder and the consecutive sentence of 25 years to life for the use of a firearm causing great bodily injury. He argues the sentence, as applied to him, constitutes cruel and unusual punishment and is therefore prohibited under both the state and federal constitutions. Because this argument is without merit, we affirm the judgment.

I

FACTS

We review the facts on appeal in the light most favorable to the judgment. (People v. Stanley (1995) 10 Cal.4th 764, 792-793.)

On the afternoon of August 23, 2002, Leon Tran, Kenny Nguyen, and John Vo went to Mile Square Park in Fountain Valley to go fishing. They waited for a friend to arrive with another fishing pole. They were apparently part of a larger group going to the park that day.

Park Ranger Lorrie Zuczek noticed a large group of Asian males near one of the park shelters. She approached and spoke to this group briefly to make sure there were no problems before continuing her patrol. She was contacted shortly thereafter by a separate group of five Asian males (not Tran and his fishing friends, but others), who appeared agitated and fearful. They eventually told her that the larger group had guns and wanted to kill them. Based on this conversation, Zuczek called the police and asked them to come to the park. The five males remained with Zuczek while waiting for the police to arrive.

Two members of the larger group then walked toward Zuczek and the smaller group, but then turned around and walked away. She then saw the large group run off in different directions. Five to 10 minutes later, while waiting for the police with the smaller group, Zuczek heard gunshots. Almost immediately, the cell phones of four of the five males with whom Zuczek was waiting began ringing.

According to Tran, the shooting occurred when Eric Pham drove his car up to Tran, Nguyen, and Vo. Defendant got out of the car, walked towards them, and said, â€