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The People v. Ruou Van Phan


April 19, 2011


(Super. Ct. No. 07F05344)

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

P. v. Phan



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


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.



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 his constitutional right to due process. We reject defendant's contention.


The offenses occurred on May 15, 2007. The complaint was filed on May 23, 2007, and the court appointed counsel for defendant. In December 2007, defense counsel declared a doubt as to defendant's competence. The court suspended proceedings and appointed two doctors, Janice Nakagawa and John Chamberlain, to evaluate defendant. Because Dr. Nakagawa opined defendant was malingering and Dr. Chamberlain was ambiguous, the court appointed two more doctors, Charles Schaffer and Lisa B. Perrine. The latter two doctors opined defendant was incompetent to stand trial. The court found defendant incompetent to proceed. On May 23, 2008, the court ordered defendant placed at Napa State Hospital (NSH).

Later, on October 20, 2008, when defendant was returned to court, medical authorities at NSH opined defendant's competency was restored. On November 17, 2008, the court reinstated criminal proceedings. Defendant was held to answer after a preliminary hearing. Defendant entered a plea of not guilty, denied the enhancement, and requested a jury trial.

On April 7, 2009, shortly before trial, defendant wanted a new attorney, an Asian one. Defendant is Vietnamese and used a Vietnamese interpreter for all proceedings. The court conducted a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Defendant stated defense counsel initially thought he was emotionally disturbed because he had been in the Army. Defendant believed he had a mental condition and an emotional problem and that doctors had certified him to be mentally disabled. Defendant claimed he did not know what he was doing when the offenses occurred. The court asked defendant whether that was a defense he wished counsel to pursue. Defendant responded, "I have been in the court system for two years now. I was hospitalized in [NSH] for a long time. Anyway, I am back here but [defense counsel] hasn't been able to help me with anything in my case." Defendant claimed he was "not guilty."

The court asked defense counsel to respond to defendant's claims. Defense counsel stated, "As of recently, [defendant] has insisted on presenting an NGRI defense, so I have now appointed [sic] Dr. Matiuzzi to do an evaluation to see if that would be an appropriate plea." Defense counsel confirmed that defendant had seen numerous psychologists and psychiatrists and, after deemed incompetent, had spent 90 days at NSH. Defense counsel had defendant evaluated after he returned from NSH and "he was competent upon return."

The court queried, "As I understand it, you are attempting to gather evidence to present to make this defense on behalf of [defendant]." Defense counsel stated that she was attempting to determine whether it would be an appropriate plea, engaged the services of Dr. Matiuzzi, and needed expert testimony to support the defense position. Defense counsel stated, "At this time we have no expert thus far that has said that at the time of the incident [defendant] was insane. All experts agree that he does have mental illness. But I attempted to explain to [defendant] there is a difference between having mental illness and having an expert that will be able to support a plea of not guilty by reason of insanity." Defense counsel expected Dr. Matiuzzi, a psychiatrist, to have an evaluation ready in a couple of weeks and asked for a continuance. Defense counsel was still working on the defense. Defendant stated that he needed an Asian attorney who "would be able to understand [his] case better." The court denied defendant's Marsden motion.

On April 22, 2009, defendant sought substitute counsel and the court conducted a Marsden hearing. Defendant claimed that he did not understand the charges against him and claimed he "didn't know what [he] was doing." He claimed he was "not familiar with the laws," did not know if he needed witnesses, and did not know that he was charged with attempted murder. He did complain that counsel had "bothered [his] family members a great deal." Defendant also complained that counsel had not helped him "at all." Defense counsel stated that she responded to a single e-mail from defendant's son regarding defendant's exposure and court dates. The court confirmed with defense counsel that defendant had previously been declared incompetent. Defense counsel stated Dr. Matiuzzi met with defendant on the previous day and found he was able to discuss his case. Defense counsel said Dr. Matiuzzi was satisfied defendant was competent to stand trial. The court denied defendant's Marsden motion. Defendant complained again that counsel had not helped him. The court confirmed its ruling.


Penal Code section 1018 requires a defendant personally and in open court to enter a plea, including an NGI plea. "This section places the responsibility for entering a plea upon defendant and his counsel. The trial court has no responsibility, and under our adversary system, should have no responsibility, to conduct the defense of an accused represented by counsel." (People v. Coogler (1969) 71 Cal.2d 153, 168-169.) Defendant's desire to enter an NGI plea trumps counsel's tactical choice otherwise. (People v. Medina (1990) 51 Cal.3d 870, 899-900; People v. Clemons (2008) 160 Cal.App.4th 1243, 1251-1252.) A defendant must make an unequivocal request to enter an NGI plea. (People v. Henning (2009) 178 Cal.App.4th 388, 394-396, 397; People v. Clemons, supra, 160 Cal.App.4th at pp. 1248-1249, 1251.)

The record reflects defendant failed to make an unequivocal request to enter an NGI plea. At the April 7 Marsden hearing, when defense counsel informed the court defendant "recently" decided he wanted an insanity defense and defense counsel planned to have defendant evaluated by a psychiatrist for such a defense, defendant never confirmed defense counsel's representation or stated he wanted to enter an NGI plea. It appears defense counsel was unsure whether to pursue the defense. She had hired Dr. Matiuzzi to evaluate defendant to determine whether there was evidence to support such a plea. It is reasonable to conclude, upon receipt of Dr. Matiuzzi's evaluation, defense counsel would be able adequately to advise defendant about an NGI plea and prepare for trial. At the subsequent Marsden hearing, defendant did not state he was entering an NGI plea. Instead, defendant claimed he did not understand the charges against him, "didn't know what [he] was doing," was "not familiar with the laws," did not know if he needed witnesses, and did not know that he was charged with attempted murder. He did complain that counsel had "bothered [his] family members." Defense counsel said defendant previously was declared incompetent and on the day before the Marsden hearing, Dr. Matiuzzi met with defendant who was able to discuss his case. Dr. Matiuzzi opined that defendant was competent to stand trial.

Defendant's comments about his mental health and claims that he did not know what he was doing or what the charges were against him do not amount to his personal, unequivocal request to enter an NGI plea. The trial court did not err.

Defendant contends the trial court's error in not allowing him to enter an NGI plea resulted in the denial of his constitutional right to due process. Having found no error, we need not discuss this "constitutional 'gloss.'" (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.)


Defendant contends the abstract of judgment requires correction to reflect the oral pronouncement of judgment in that the court did not impose a $120 criminal conviction assessment pursuant to Government Code section 70373. The People concede that the court did not orally impose the assessment. Because the assessment is mandatory, the People argue that the court's failure to impose the assessment constituted an unauthorized sentence which may be corrected on appeal. Based on the effective date of the statute, defendant claims the assessment is unauthorized. We agree with the People. The abstract of judgment accurately reflects the $120 assessment (Gov. Code, § 70373), which this court has held applies retroactively. (People v. Castillo (2010) 182 Cal.App.4th 1410.) Defendant acknowledges Castillo but raises the issue to preserve it for further review.


The People claim the trial court imposed an unauthorized sentence in striking the mandatory court security surcharge (Pen. Code, § 1465.8, subd. (a)(1)), which may also be corrected on appeal despite the prosecutor's failure to object. We agree. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157.) On July 10, 2009, when defendant was sentenced, the amount was $20 per conviction. (Stats. 2007, ch. 302, § 18.)


The judgment is modified to provide for a $120 criminal conviction assessment (Gov. Code, § 70373) and an $80 court security surcharge (Pen. Code, § 1465.8). The abstract of judgment already reflects the $120 criminal conviction assessment. The trial court is directed to prepare an amended abstract of judgment to reflect the $80 court security surcharge as well, and to forward a certified copy to the Department of

Corrections and Rehabilitation. As modified, the judgment is affirmed.*fn1

We concur: BUTZ , J. MAURO , J.

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