People v. Tran CA4/3 ( 2023 )

Filed 12/21/23 P. v. Tran 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, G062173
v. (Super. Ct. No. 12WF2714)
TUAN THANH TRAN, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Kimberly Menninger, Judge. Reversed and remanded with directions.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and
Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Tuan Thanh Tran, who is presently serving an indeterminate
prison sentence after being convicted of, inter alia, premeditated attempted murder and
two counts of attempted voluntary manslaughter, appeals from a postjudgment order
denying his request to correct an allegedly illegal sentence. He contends the original
sentencing court erroneously failed to impose a sentence for one convicted count before
staying the sentence pursuant to Penal Code section 6541, and it committed the same
error as to various firearm related enhancements. From his perspective, the problem was
compounded years later when he brought the issue to the trial court’s attention during a
sentencing related proceeding and the trial court recognized, but declined to correct, the
sentence. Like the Attorney General, we agree portions of defendant’s sentence are
unauthorized. Accordingly, we reverse and remand the matter to the trial court for
correction of the unauthorized sentences, which shall include consideration of whether
full resentencing on all counts is necessary under the circumstances.
FACTS
In May 2015, a jury found defendant guilty of willful, deliberate and
premeditated attempted murder (count 1; §§ 187, subd. (a), 664, subd. (a)), two counts of
attempted voluntary manslaughter (counts 2 & 3; §§ 192, subd. (a), 664, subd. (a)), and
shooting at an occupied motor vehicle (count 4; § 246). It also found true all alleged
firearm enhancements (§§ 12022.5, subd. (a), 12022.53, subds. (c) & (d)). Prior to
sentencing, the trial court found true defendant had a prior serious and violent felony
(§§ 667, subds. (d) & (e)(1), 1170.12, subd. (b)), and a prior serious felony (§§ 667, subd.
(a)(1), 1192.7).
At a December 2015 sentencing hearing, the trial court indicated its intent
to sentence defendant to a total term of 37 years to life in prison. It took the following
1 All further statutory references are to the Penal Code.
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actions: for count 1, it imposed an indeterminate term of seven years to life, plus a
consecutive 25 years to life for the discharging a firearm causing great bodily injury
enhancement (§ 12022.53, subd, (d)), and it left unaddressed the remaining firearm
enhancements (§§ 12022.53, subd. (c), 12022.5, subd. (a)); for counts 2 and 3, it imposed
concurrent three-year terms, it stayed execution of a sentence for the personal use of
firearm enhancements (§ 12022.5, subd. (a)) without imposing a sentence, and it
dismissed the personal discharge of firearm enhancements (§ 12022.53, subd. (c)); and
for count 4, it did not impose a sentence and instead, pursuant to section 654, stayed
imposition of the sentence for the count and its associated discharge of a firearm causing
great bodily injury enhancement (§ 12022.53, subd., (d)). With respect to the prior
convictions, the court imposed a consecutive five-year term for the prior serious felony
(§ 667, subd. (a)(1)), and it struck the other prior for sentencing purposes only (§ 667,
subds. (d) & (e)(1)).
Another panel of this court affirmed defendant’s conviction in an appeal
which did not raise any sentencing issues. (People v. Tran (Sept. 27, 2017, G053008)
[nonpub. opn.].)
In a letter dated July 2020, the California Department of Corrections and
Rehabilitation (CDCR) notified the trial court that the abstract of judgment and/or minute
order “may be in error, or incomplete” for specified reasons. It brought three matters to
the court’s attention: (1) as to count 1, the court’s unnecessary modification of box 6a of
the abstract, as well as a lack of clarity whether the attempted murder was willful,
deliberate, and premeditated, without which the proper sentence would instead be a
determinate 5, 7, or 9 years rather than an indeterminate life term; (2) the improper listing
of the prior serious and violent felony as an enhancement with a separate term even
though the court’s minutes reflect the prior was stricken for sentencing purposes and such
a prior does not carry a separate term; and (3) the unnecessary modification of box 6b and
redundant listing there of the indeterminate 25 years to life enhancement (§ 12022.53,
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subd. (d)). In closing, CDCR requested the court “[p]lease review [its] file to determine
if correction [was] required.”
The trial court filed CDCR’s letter in February 2022 and the case was
reassigned. Defendant and the People filed written briefs indicating their positions on the
appropriate steps for the court to take in light of the letter. Defendant urged the court to
recall his sentence and correct the errors made at the original sentencing hearing. Among
the errors he noted was the court’s failure to impose a sentence for count 4, an
enhancement associated with that count, and an enhancement associated with count 3,
before staying execution of those sentences pursuant to section 654. He believed full
resentencing was needed and the court was obligated to apply current law as to all counts
and enhancements. The People expressed no position on the need for full resentencing,
instead indicating if the court was inclined to do so it should sentence defendant to the
same total term of 37 years to life in prison and outlined how that would be achieved as
to the various counts, enhancements and priors.
In January 2023, the court held a hearing on the matter. It viewed the
CDCR letter as a “fix-it” request that did not reopen sentencing but instead only
necessitated clerical correction of the abstract of judgment. Accordingly, from its
perspective, it could just “leave the illegal sentence in place” and instead focus on
“try[ing] to clean [the abstract] up as best [as it could] because there’s [sic] some major
errors.”
The court made various modifications to the abstract of judgment, but left it
unchanged as to count 4 and the associated enhancement. As to that count, it reasoned as
follows: “And then on count 4[,] the sentence which is not stated is stayed under
[section] 654. And that’s the one that has a 3-5-7 sentence. So I’m not going to correct
that. I’m just going to leave it as stayed by [section] 654 because [the original sentencing
judge] doesn’t make it clear, and I don’t know what he intended.”
Defendant timely appealed.
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DISCUSSION
Defendant contends his sentences as to count 4 and several firearm
enhancements are illegal because the original sentencing court stayed execution of the
sentences pursuant to section 654 without first imposing a term for each, and the trial
court erred in not correcting the problem when brought to its attention after the CDCR’s
letter. The Attorney General agrees the sentence is unauthorized, as do we.
Section 654 dictates how an act or omission that is punishable in different
ways by different provisions of law shall be punished. The underlying principle is a
defendant may not be subjected to multiple punishments for the single act or omission.
(People v. Duff (2010) 50 Cal.4th 787, 796.) “Originally, some controversy existed
regarding the appropriate procedure for sentencing courts to follow in carrying out the
mandate of section 654.” (Id., at p. 795.) The Supreme Court eventually resolved the
uncertainty. “[W]hen a court determines that a conviction falls within the meaning of
section 654, it is necessary to impose sentence but to stay the execution of the duplicative
sentence.” (Id., at p. 796.) Failure to impose a sentence prior to the stay amounts to an
unauthorized sentence which may be corrected at any time.2 (People v. Pelayo (1999) 69
Cal.App.4th 115, 122; see People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327.)
Due to the original sentencing court’s error in applying section 654 in this
case, and the subsequent trial court’s failure to remedy the error, we must remand the
matter for correction of the unauthorized sentences. The parties’ appellate briefing does
not address, and we express no opinion regarding, whether such correction will trigger
the need for a full resentencing as to all counts. (See, e.g., People v. Buycks (2018) 5
2 Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 441),
effective January 1, 2022, amended section 654, subdivision (a) to provide the trial court
with greater discretion in selecting a term of punishment for an act or omission which is
punishable in different ways by different provisions of law. (People v. Mani (2022) 74
Cal.App.5th 343, 379.) The legislation did not impact how a trial court must pronounce
sentence when the statute is implicated. (Id. at p. 380.)
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Cal.5th 857, 893 [“[W]hen part of a sentence is stricken on review, on remand for
resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can
exercise its sentencing discretion in light of the changed circumstances’”].) Resolution of
that issue is properly left to the trial court on remand.
DISPOSITION
The postjudgment order is reversed. On remand, the trial court shall take
appropriate steps to correct the unauthorized sentences on count 4 and the enhancements
for which a sentence term was not imposed prior to its stay pursuant to section 654,
which shall include consideration of whether full resentencing on all counts is necessary
under the circumstances.
DELANEY, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOTOIKE, J.
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