People v. Phung

• Decision Date: 31 July 2018
• Docket Number: G051876
• Citation: 236 Cal.Rptr.3d 174,25 Cal.App.5th 741
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Tom PHUNG, Defendant and Appellant.

25 Cal.App.5th 741

236 Cal.Rptr.3d 174

The PEOPLE, Plaintiff and Respondent,

v.Tom PHUNG, Defendant and Appellant.

G051876

Court of Appeal, Fourth District, Division 3, California.

Filed July 31, 2018

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randall D. Einhorn and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

IKOLA, J.

Defendant Tom Phung was 17 years old when he and fellow Tiny Rascal Gang (TRG) members, riding in about five cars, chased a fleeing vehicle containing eight rival gang members. A TRG member two cars ahead shot and killed one rival and seriously wounded

a second. A jury convicted defendant, as an aider and abettor, of the lesser included crime of second degree murder ( Pen. Code, § 187, subd. (a) ; count 1),¹ attempted murder (§§ 664, subd. (a), 187, subd. (a); count 2), shooting at an occupied motor vehicle (§ 246; count 3), and street terrorism (§ 186.22, subd. (a); count 4). With respect to the first three crimes, the jury found true the allegations that defendant committed them for the benefit of a criminal street gang (§ 186.22, subd. (b)(1) ), and vicariously discharged a firearm causing great bodily injury and death (former § 12022.53, subds. (d), (e)(1) ).

The court sentenced defendant to an aggregate state prison term of 40 years to life, consisting of a 15-year-to-life term for second degree murder and a consecutive 25-year-to-life term for vicariously using a firearm in that crime; concurrently with count 1, a five-year term for attempted murder and a 25-year-to-life enhancement for vicariously using a firearm in that crime; and, also concurrently with count 1, a three-year term for shooting at an occupied vehicle and a 25-year-to-life enhancement for vicariously using a firearm in that crime. The court dismissed for sentencing purposes the gang enhancement to counts 1, 2, and 3. It imposed and stayed execution of sentence on the street terrorism conviction pursuant to section 654. Judgment was entered in April 2015. Defendant appealed.

While that appeal was pending, the electorate passed Proposition 57, the Public Safety and Rehabilitation Act of 2016, which went into effect in November 2016. ( People v. Superior Court (Lara ) (2018) 4 Cal.5th 299, 303, 228 Cal.Rptr.3d 394, 410 P.3d 22 ( Lara ).) Proposition 57, among other things, prohibits the direct filing of charges in criminal court against a minor. ( Welf. & Inst. Code, § 707, subd. (a).) Charges must be filed in juvenile court, and the district attorney must move the court for a transfer order to charge a minor as an adult in criminal court. ( Lara, at p. 303, 228 Cal.Rptr.3d 394, 410 P.3d 22.)

In March 2017, we issued an opinion affirming the judgment. ( People v. Phung (2017) 9 Cal.App.5th 866, 215 Cal.Rptr.3d 252, vacated by order on May 17, 2018. In April 2017, defendant petitioned for review before the California Supreme Court. While that petition was pending, another panel of this court issued People v. Vela (2017) 11 Cal.App.5th 68, review granted July 12, 2017, S242298 ( Vela ), which held that Proposition 57 operates retroactively under the rule announced in In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ).² Defendant’s counsel, however, was unaware of the filing of the Vela opinion, and did not raise the issue before the California Supreme Court. That court denied review, following which we issued the remittitur.

Approximately one week later, defendant filed a motion to recall the remittitur on the ground that his counsel had provided ineffective assistance of counsel in failing to raise the retroactivity of Proposition 57 to his own case. (See People v. Valenzuela (1985) 175 Cal.App.3d 381, 394, 222 Cal.Rptr. 405, overruled on other grounds by People v. Flood (1998) 18 Cal.4th 470, 490, fn. 12, 76 Cal.Rptr.2d 180, 957 P.2d 869 ["The motion to recall the remittitur is granted on the sole ground that defendant ... was deprived of his constitutional right to the effective assistance of appellate counsel."].) Defendant’s counsel admitted the error. We granted the motion, recalled the remittitur, and solicited supplemental briefing.

In October 2017, defendant requested another round of supplemental briefing, this time on the retroactivity of Senate Bill No. 620 (2017-2018 Reg. Sess.) (SB 620), which amended the law so that courts now have discretion to strike firearm enhancements,³ a discretion the court did not have when initially sentencing defendant. We granted the request and solicited further briefing.

In February 2018, the California Supreme Court issued Lara, supra, 4 Cal.5th 299, 228 Cal.Rptr.3d 394, 410 P.3d 22, in which it adopted the rationale and holding of Vela , supra , 11 Cal.App.5th 68, review granted July 12, 2018, S242298. We subsequently vacated our prior opinion by order on May 17, 2018.

In section I of the "DISCUSSION" section of this opinion, we repeat the analysis from our original opinion affirming the judgment. In section II of the "DISCUSSION" section, we conclude that both Proposition 57 and SB 620 retroactively apply to defendant. Accordingly, we reverse and remand to hold a transfer hearing and to resentence defendant, as explained in greater detail post .

FACTS

The Shooting

On March 20, 2011, about 20 people were partying at Andrew Tran’s home, including defendant (a TRG member) and Leesa Huynh. The people talked about "getting back at" rival gang Power of Vietnamese (POV) because POV had thrown a brick through a window of a TRG member’s house, injuring the member’s "little sister."

Around 11:00 p.m., Huynh left the party in a car driven by Tran. There were three other passengers in Tran’s car—Benjamin Nguyen, Jonathan Tieu, and Skyler Avila. Nguyen gave Tran a gun, which Tran hid in the dashboard behind the car’s radio. Nguyen was a Hellside gang member. Tieu was a TRG member. Tran and Avila had ties to both the TRG and Hellside gangs.

Tran’s group stopped at a restaurant, where they were joined by three or four other cars of people from the party, including Hellside gang members. From there, they drove to the parking lot of a pool hall where POV members were known to hang out at times. Tran’s car arrived at the pool hall first. Eventually, there might have been a total of six or seven cars there.

Tran, Tieu, and Nguyen got out of the car and shouted at people in the pool hall, yelling, "Tiny Rascal Gang," "T.R.G., what’s up?", and "Fuck VT." Huynh thought the men were shouting at people in TRG’s rival gangs, i.e., POV, Asian Family (AF), and Viets Together (VT).

Tran and the others got back into the car. Nguyen sat in the front passenger seat. Tran repositioned his car in the parking lot. His car and several other vehicles formed a "barricade" that served as a "check point" for other vehicles trying to exit the parking lot.

One car drove by the barricade. Someone in Tran’s car said, "That’s not them." Then an SUV (sport-utility vehicle) drove by. Tran said, "That’s them," and drove after the SUV onto Westminster Boulevard. Together with Tran’s car, at least two other cars chased the SUV. When the SUV was in the middle lane, Tran’s car switched to the left lane and was a little bit behind the SUV. Nguyen told Tran to accelerate.

Tran’s car pulled up to the driver’s side of the SUV. Nguyen shouted at the people in the SUV through the car’s open window, asking what gang they were from. Nguyen had the gun Huynh had seen earlier. Inside the SUV, Scottie Bui (a POV gang member) said, "It’s Puffy [Tran] and C.J. [Tien Phung]."

Huynh heard five gunshots emanate from the passenger side of Tran’s car. The SUV’s driver told everyone to duck down. Two guys were "hit," including Bui. The SUV’s occupants drove an unresponsive Bui to the hospital, carried him "over there," and left. Bui died from a gunshot wound

to the head. Another male suffered great bodily injury from a shot to his neck.

After the shooting, the Tran group drove to a house in the "neighborhood," and then to get doughnuts, along with some other people who had been with them at the party and the pool hall.

At trial, a TRG member (who pleaded guilty to attempted murder and street terrorism based on the above underlying crimes) testified that TRG members are expected to "back up" each other in fights and that a member would be "checked," i.e., beaten up, if he failed to be a back up. He identified defendant in court as a fellow TRG member and testified that defendant’s brother Tien Phung was the leader of TRG at the time of the shooting.

Defendant’s Police Interview

Almost three months later, on June 16, 2011, a police officer interviewed defendant. A video recording of the interview was played for the jury and a transcript was distributed. In the interview, defendant gave the officer the following account of his relationship with TRG and the events of the night of March 20, 2011 and the early morning hours of March 21, 2011.

Defendant was 17 years old and had been on probation since he was 13 or 14 years old. Defendant did not associate with TRG; he had "stopped hanging out with them since [his] last incident .... [He] helped the other detective, [he] went to school, [he] got [his] laser [tattoo] removed ...." He had already had 14 painful laser treatments to remove a TRG tattoo from his back.

Defendant was at the party the night of the shooting, but left to go to his then girlfriend’s house because her mother was away from the home. He paid Cynthia to drive him to the girlfriend’s house.⁴ He was there until 1:00 or 2:00 a.m. Defendant phoned his brother to come pick him up, but his brother came and did not see him. Defendant talked on the phone to a TRG member who told him there were "VT’s at the pool hall" and that defendant should come down there. Around 2:00 a.m., Cynthia and ...