People v. Phung CA4/3

FACTS

In 2020, Phung and S.S. were both employed as machinists at an engineering company. One day in late April or early May of that year, Phung told S.S. never to speak to him. A week or two later, around 8:00 a.m. on May 8, 2020, S.S. directed Phung where to discard metal shavings. Phung did not say anything and walked away. S.S. was continuing his work when Phung walked up behind him. Phung yelled at S.S. “‘Didn’t I tell you not to talk to me?’” S.S. responded, “‘Yeah, so’” and attempted to return to his work. Phung pulled out a semiautomatic pistol, put it up to S.S.’s head, and “pushed” S.S. with it, causing S.S. to “move back a bit.” S.S. turned and, as he walked away, felt a pain in the back of his head. He also heard a gunshot directly behind his head. S.S. was unsure what had happened but he was then

1 All further code references are to the Penal Code unless

otherwise specified.

2 bleeding significantly from a one and one-half inch long gash on the top of his head.

PROCEDURAL HISTORY

In November 2023, a jury found Phung guilty of assaulting S.S. with a semiautomatic firearm in violation of section 245, subdivision (b). The jury unanimously found S.S. was hit with a…