P. v. Nguyen











Filed 3/30/10 P. v. Nguyen CA4/3







>NOT TO BE PUBLISHED IN OFFICIAL REPORTS





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opinion has not been certified for publication or ordered published for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.









IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FOURTH
APPELLATE DISTRICT



DIVISION
THREE




>

THE PEOPLE, Plaintiff and Respondent, v. HUY QUOC NGUYEN, Defendant and Appellant.

G040190 (Super. Ct. No. 06WF1567) O P I N I O N

Appeal from a judgment
of the Superior Court
of Orange
County, David A. Hoffer, Judge. Affirmed as modified.

Alan S. Yockelson, under
appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief
Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry
Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and
Respondent.



* * *

Defendant Huy Quoc
Nguyen was convicted of attempted murder
(Pen. Code, §§ 664, subd. (a), 187, subd. (a); all further statutory
references are to this code unless otherwise stated). The jury found defendant discharged a firearm
while committing the crime (§ 12022.53, subd. (d)) and committed the crime
for the benefit of a street gang (§ 186.22, subd. (b)(1)). He was sentenced to seven years to life for
the attempted murder and a consecutive 25 years to life for the gun
enhancement. The court struck the
requirement of section 186.22, subdivision (b)(5), which states that when
there is a true finding a defendant committed the crime for the benefit of a
street gang (§ 186.22, subd. (b)(1)) he will not be eligible for parole
until having served at least 15 years.

He appeals on several
grounds: 1) erroneous admission of
testimony by a gang expert; 2) insufficient evidence of premeditation; 3)
prosecutorial misconduct; and 4) cruel and unusual punishment. The Attorney General argues the sentence for the
attempted murder was incorrect. We agree
and modify the sentence accordingly.
Otherwise the judgment is affirmed.



FACTS



In the period before the
day of the incident defendant associated with his cousins, Billy and Tam
Troung; Tam was a member of the Viet Boyz street
gang. When the gang formed in Westminster
as an offshoot of the San Diego
based Viet Boyz, they initially called themselves the Tiny Viet Boyz but soon
eliminated the term Tiny; another name by which the gang was known was V
Boyz. (Unless the context requires
otherwise we will refer to this gang as V Boyz.)

On the evening of the
shooting defendant and his cousins were drinking with Alex Phu, Johnny Nguyen
(not related to defendant), and several others, who were all members of or
affiliated with the V Boyz, at Phu's house.
Defendant showed the group his gun.
According to Billy defendant â€