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The People v. Ruou Van Phan

April 19, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RUOU VAN PHAN, DEFENDANT AND APPELLANT.



(Super. Ct. No. 07F05344)

The opinion of the court was delivered by: Nicholson, Acting P. J.

P. v. Phan

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Ruou Van Phan of attempted murder, assault with a deadly weapon, and corporal injury, all involving his wife. With respect to the assault and corporal injury offense, the jury found that defendant personally inflicted great bodily injury. The jury also convicted defendant of assault with a deadly weapon upon his stepdaughter. The court sentenced defendant to state prison for an aggregate term of eight years.

On appeal, defendant contends the trial court prejudicially erred in denying him the statutory right to enter a plea of not guilty by reason of insanity (NGI). Defendant claims this error resulted in the denial of his constitutional right to due process. Defendant also contends that the abstract erroneously reflects a criminal conviction assessment which the court did not impose. In the alternative, defendant claims the criminal conviction assessment is unauthorized. We conclude the trial court did not err with respect to defendant's plea. We reject defendant's challenge to the criminal conviction assessment.

FACTS

On May 15, 2007, defendant and his wife verbally argued, mostly about defendant's unfounded jealousy. His wife suggested they separate. He offered to leave if she gave him a lot of money and packed a few things. She did not have any money to give him. His wife went out onto the balcony where defendant hit her from behind on the head with a baseball bat. She collapsed and he continued to hit her. When his stepdaughter tried to intervene, defendant hit her with the bat on her head and arms. His wife and stepdaughter attempted to flee with defendant in pursuit. He continued to hit his wife, threatening to kill her. Some men wrestled the bat out of defendant's hands. Someone said, "'You're going to jail,'" and defendant walked away. Defendant climbed up onto the roof of the apartment and jumped, sustaining a fractured pelvis, a head injury, and many abrasions. An officer noticed a strong odor of alcohol coming from defendant's person.

Defendant's wife suffered multiple lacerations on her head which were stapled and sutured, a knot on her right hand, bruising, and a concussion. Defendant's stepdaughter suffered a depression on her head and bruises on her hand.

The prosecutor presented the following evidence of a prior act of domestic violence. On July 13, 2006, defendant's wife called and informed defendant he did not need to pick her up at work because she would be taking a driving lesson. When the driving instructor drove defendant's wife and stepdaughter to their apartment to drop the stepdaughter off, defendant ran at them with a hammer and a knife, chased them and threatened to kill them. When the driving instructor called the police, defendant threatened to get a gun and shoot them. Defendant fled toward the apartment.

DISCUSSION

I

Defendant first contends that the trial court erred in failing to allow him to enter an NGI plea. He claims the trial court deferred to defense counsel's decision to have defendant evaluated in order to determine whether to enter such plea. He claims the error resulted in the denial of ...


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