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The People v. Hien Gia Nguyen

January 23, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
HIEN GIA NGUYEN, DEFENDANT AND APPELLANT.



(Super. Ct. No. CRF10-1442)

The opinion of the court was delivered by: Butz , J.

P. v. Nguyen

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Hien Gia Nguyen of possessing and transporting cocaine base and possessing and transporting cocaine base for sale, along with two minor related offenses. (Former Health & Saf. Code, §§ 11350, subd. (a), 11351.5, 11352, subds. (a), (b).) Defendant also pleaded no contest to a charge of reckless driving with a controlled substance influence ("wet reckless"). (Veh. Code, former § 23103, § 23103.5.) Defendant was sentenced to nine years in state prison.

On appeal, defendant contends: (1) the prosecutor's cross-examination of defendant regarding another criminal matter pending against him in Santa Clara County amounted to prosecutorial misconduct, denying him due process; (2) his counsel ineffectively assisted him by failing to object throughout the prosecutor's improper cross-examination and by failing to request admonitions; and (3) clerical errors in the abstract of judgment and in the minute order for the sentencing hearing must be corrected to conform with the oral pronouncement of judgment. Except for these clerical errors- --which we direct the trial court to correct--we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On March 16, 2010, defendant was stopped by California Highway Patrol (CHP) Officer Lamberto Montano for using his cell phone while he was driving to Portland. Before defendant came to a stop, Montano noticed defendant reaching underneath the driver and passenger seats, and believed he was either concealing something or reaching for a weapon. A search revealed $3,000 in cash on defendant and a cigarette box in his car containing three rocks of cocaine, each about half the size of a golf ball, and totaling 20.77 grams.

Defendant was taken to the Woodland CHP office for a drug evaluation, where he admitted to smoking crack cocaine 30 minutes prior to being stopped by Officer Montano. Defendant explained that all the rock cocaine found in his possession was for his own use, and the large amount was meant to hold him over during his 10-day trip to Portland to visit his girlfriend. Defendant maintained that the $3,000 was to pay back his girlfriend who loaned him bail money.

Defendant was out on bail pending a drug case in Santa Clara County when he was arrested in the present matter. On January 5, 2010, defendant allegedly had sold an eighth of an ounce of rock cocaine to Officer Douglas Gerbrandt, an undercover San Jose police officer. The officer arranged to meet defendant again on January 27, 2010, to purchase an ounce of powder cocaine and a half-ounce of rock cocaine. Defendant was arrested in the Santa Clara matter when he arrived at the meeting place on January 27.

Defendant testified that his girlfriend visited from Portland when he was arrested in Santa Clara County and loaned him $7,000--of which defendant used $3,000 to retain an attorney to handle his Santa Clara case. After paying his attorney, defendant drove to Salinas to buy an ounce of crack cocaine, and the following day defendant embarked on his trip to Portland when he was arrested for the criminal charges at issue.

Defendant's appeal primarily involves the prosecution's introduction of evidence regarding ...


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