Opinion
F083204
03-20-2023
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY THAO, Defendant and Appellant.
William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. 20CR-04970 Ronald W. Hansen, Judge.
William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PENA, J.
INTRODUCTION
Appellant Johnny Thao was convicted of attempted voluntary manslaughter (Pen. Code, §§ 664, 192, subd. (a); count 1) with use of a firearm enhancement (§ 12022.5, subd. (a)); assault with a firearm (§ 245, subd. (a)(2); count 2) with a use of a firearm enhancement (§ 12022.5, subd. (a)) and a great bodily injury enhancement (§ 12022.7, subd. (a)); and being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 5). Appellant was also found to have suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). (Undesignated statutory references are to the Penal Code.) The trial court sentenced appellant to 14 years 4 months in state prison.
On appeal, appellant contends the matter should be remanded for resentencing in light of newly enacted Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill 518). Respondent concedes remand is appropriate. We accept respondent's concession and remand the matter for resentencing.
Appellant also contends his sentence for being a felon in possession of a firearm should have been stayed pursuant to section 654. To assist the court and parties on remand, we express our conclusion that on this record, the trial court did not err in concluding section 654 did not bar appellant's sentence for the being a felon in possession of a firearm conviction.
BACKGROUND
Ashley H. and appellant have intermittently dated for several years. On the evening of August 20, 2020, appellant drove to Ashley's house in his car. Over the previous few days, Ashley and appellant had been arguing because Ashley expressed her desire to take a break from their relationship.
Ashley was alone in her house and was mopping the kitchen floor when appellant arrived. Appellant tried to talk to Ashley about their relationship, but Ashley told him she did not want to talk about it. Appellant and Ashley began arguing, and appellant accused her of cheating on him with Max P. Ashley and Max had also been involved romantically around this time.
The argument between appellant and Ashley escalated and eventually became physical. Appellant and Ashley began pushing each other. They both grabbed a broom, and appellant struck Ashley in the head with a metal broom handle, leaving a mark behind her ear.
Max arrived at Ashley's house while appellant and Ashley were still arguing. Ashley was not expecting Max to come over. When Max entered the house, appellant and Ashley were arguing intensely, and he saw them put their hands on each other. He became concerned for Ashley's safety because "she was getting hit" by appellant. Max then hit appellant from behind on the back of the head. Ashley testified Max struck appellant with an object that appeared to be a metal rod or pipe. However, Max claimed he only used his fist.
After Max hit appellant in the head, appellant began to stumble and nearly fell to the ground. As appellant regained his balance, he drew a .22-caliber revolver from his pocket. Ashley yelled to Max to run. Max fled out of the front door, and appellant followed him. Once outside, appellant pointed his revolver at Max and fired five or six shots, striking Max in the back of his right arm and on the left side of his buttocks.
After the shooting, appellant fled in his car. Max was taken to the hospital where he was treated for his injuries. Appellant drove to his sister's house, where he was living at the time. He wrapped the revolver in clothing and left it in a laundry basket in his room where it was later recovered by law enforcement. He then drove to the hospital where he was treated for a four-inch laceration on the back of his head. Officers later searched appellant's car and located a bag in the center console containing approximately 50 unexpended rounds of .22-caliber ammunition, plus one unexpended round in the driver's door panel.
The parties stipulated appellant had previously been convicted of a felony and, therefore, was prohibited from possessing a firearm on August 20, 2020.
DISCUSSION
I. The Matter Must Be Remanded for Resentencing in Light of Newly Enacted Assembly Bill 518
Appellant contends remand and resentencing are required pursuant to Assembly Bill 518, which became effective while this appeal was pending. Assembly Bill 518 amended section 654, subdivision (a) to provide, in pertinent part: "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." (Italics added.) Under the previous version of section 654, subdivision (a), the trial court was required to impose sentence for "the provision that provides for the longest potential term of imprisonment." (§ 654, former subd. (a).) As amended, section 654 "now provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence." (People v. Mani (2022) 74 Cal.App.5th 343, 379.)
Respondent concedes Assembly Bill 518 applies retroactively to this case as it was not final on appeal before Assembly Bill 518 became effective on January 1, 2022. (See In re Estrada (1965) 63 Cal.2d 740.) We agree. We assume, absent evidence to the contrary, that an amendatory statute "mitigat[ing] the possible punishment for a class of persons" is "presumptively retroactive and applied to all persons whose judgments were not yet final at the time the statute took effect." (People v. Frahs (2020) 9 Cal.5th 618, 624.)
Respondent also concedes remand for resentencing is warranted. The trial court sentenced appellant to count 2, which provided for the longest potential term of imprisonment, and, pursuant to section 654, stayed sentence for count 1, which provided for a shorter sentence. Remand is therefore appropriate so the trial court may fully resentence appellant anew, incorporating the new legislative changes. (See People v. Buycks (2018) 5 Cal.5th 857, 893; People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 ["[T]he full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant"].) We therefore accept respondent's concession, vacate appellant's sentence, and remand the matter for a full resentencing. We express no view as to how the trial court should exercise its discretion on remand.
II. The Trial Court Did Not Err in Imposing Sentence for Appellant's Being a Felon in Possession of a Firearm Conviction
Appellant next claims the trial court should have stayed his sentence for being a felon in possession of a firearm, contending there was no evidence showing his possession of the firearm was divisible from his assault with a firearm conviction for purposes of section 654.
To assist the court and parties on remand, we elect to resolve this specific section 654 claim. We express no opinion how the trial court should resentence appellant or exercise its discretion on remand.
A. Background
At sentencing, the trial court declined to stay the sentence, pursuant to section 654, for appellant's conviction for being a felon in possession of a firearm. In so ruling, the court stated: "I find that this-the object of him taking-possessing the firearm, he wasn't expecting to assault [Max]. So I find the-the object and purpose of him possessing the firearm was independent of the purpose and object of the crime[] in Count[] two."
Earlier in the sentencing hearing, the court observed that "the evidence certainly supported the fact that [appellant] ... had the gun and it was loaded and he took it there to the house." Additionally, in declining to strike appellant's section 12022.5, subdivision (a) enhancement, the court reasoned, "[T]he fact that he took the gun to the house is problematic."
B. Standard of review
Under the plain language of the statute, "'[s]ection 654 prohibits multiple punishment for a single physical act that violates different provisions of law.'" (People v. Jones (2012) 54 Cal.4th 350, 358.) "Few if any crimes, however, are the result of a single physical act." (Neal v. State of California (1960) 55 Cal.2d 11, 19.) Thus, "[w]hether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Ibid.)
The determination of whether section 654 applies is a question of fact for the trial court, which is vested with broad discretion. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) We review the trial court's factual findings, express or implicit, in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (Id. at pp. 1312-1313; People v. Moseley (2008) 164 Cal.App.4th 1598, 1603.)
C. The trial court's ruling was supported by substantial evidence
The trial court's section 654 ruling was based on its finding that appellant did not bring the firearm to Ashley's house with the expectation that he would confront or assault Max, and therefore he acted with separate criminal intents. We conclude this finding was supported by substantial evidence. Appellant drove to Ashley's house to confront her about the state of their relationship. Max went to Ashley's house uninvited, and Ashley was not expecting him to arrive. Thus, the only conclusion supported by the evidence was that this was a chance encounter between appellant and Max. Although appellant brought the firearm with him, there is no evidence to suggest he expected to contact Max, let alone confront or shoot him. Therefore, substantial evidence supports the conclusion appellant possessed the firearm with a different objective and intent than his subsequent act of assaulting Max with that firearm.
Even if the evidence established appellant brought the firearm to Ashley's house with the intent to assault Max, section 654 would still be inapplicable because the evidence clearly established appellant possessed the firearm well before he used it to commit another offense. Section 654 bars multiple punishment for being a felon in possession of a firearm and an offense in which the firearm is employed only "where the evidence 'demonstrates at most that fortuitous circumstances put the firearm in the defendant'shand only at the instant of committing another offense.... '" (People v. Jones (2002) 103 Cal.App.4th 1139, 1144 (Jones), quoting People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412.) Conversely, section 654 is inapplicable "where the evidence shows that the defendant possessed the firearm before the crime, with an independent intent." (Jones, supra, at p. 1144.)
Jones is instructive. There, the defendant and an unidentified man drove to the victim's house, where the defendant fired several gunshots at the victim's residence. (Jones, supra, 103 Cal.App.4th at pp. 1141-1142.) The jury found the defendant guilty of shooting at an inhabited dwelling (§ 246) and being a felon in possession of a firearm. (Jones, at p. 1142.) In holding section 654 did not preclude the imposition of sentence on both offenses, the court reasoned that the evidence "supported an inference that [the defendant] harbored separate intents in the two crimes. [The defendant] necessarily intended to possess the firearm when he first obtained it, which, as we have discussed, necessarily occurred antecedent to the shooting. That he used the gun to shoot at [the victim's] house required a second intent in addition to his original goal of possessing the weapon. [The defendant's] use of the weapon after completion of his first crime of possession of the firearm thus comprised a 'separate and distinct transaction undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon.'" (103 Cal.App.4th at p. 1147.)
Here, as in Jones, there was ample evidence that appellant possessed the firearm before arriving at Ashley's house where he used it to commit another offense. He also left Ashley's house with the firearm and did not relinquish actual possession of it until he hid it in his room at his sister's house. Because he possessed the firearm before using it to commit the assault and retained possession of it well after he completed the offense, the evidence conclusively established appellant committed both offenses with separate criminal intents. Accordingly, we conclude the trial court's ruling was legally correct and supported by the evidence, and this section 654 claim lacks merit.
III. Following Resentencing, the New Abstract pf Judgment Must Reflect a Section 12022.5, Subdivision (a) Firearm Enhancement on Count 1
Appellant contends the abstract of judgment erroneously shows a section 12022.53, subdivision (d) enhancement as to count 1. Respondent concedes the abstract of judgment is incorrect in this regard, and we agree. Following resentencing, the trial court is directed to ensure this error is corrected in the new abstract of judgment.
Appellant was charged in count 1 of the second amended information with attempted murder (§§ 664, subd. (a), 187, subd. (a)) with an enhancement for the personal and intentional discharge of a firearm causing great bodily injury or death pursuant to section 12022.53, subdivision (d). At trial, the jury found appellant not guilty of attempted murder, but guilty of attempted voluntary manslaughter (§§ 664, subd. (a), 192, subd. (a)). The jury also found true the section 12022.53, subdivision (d) enhancement.
At appellant 's sentencing hearing, the People requested the trial court impose a section 12022.5, subdivision (a) enhancement on count 1 because the section 12022.53, subdivision (d) enhancement is legally inapplicable to the crime of voluntary manslaughter. (See People v. Fialho (2014) 229 Cal.App.4th 1389, 1398-1399.) The trial court granted the People's request and imposed the section 12022.5, subdivision (a) enhancement in lieu of the section 12022.53, subdivision (d) enhancement. The trial court stayed the sentence for count 1 and for the enhancement pursuant to section 654.
The abstract of judgment incorrectly states the trial court imposed a section 12022.53, subdivision (d) enhancement as to count 1. When the trial court resentences appellant, the new abstract of judgment shall reflect that the trial court instead imposed a section 12022.5, subdivision (a) enhancement as to count 1.
DISPOSITION
Appellant 's sentence is vacated, and the matter is remanded for resentencing consistent with section 654, as amended by Assembly Bill 518. Following resentencing, the court shall forward a new abstract of judgment to the appropriate authorities. The new abstract of judgment shall reflect the correction described in this opinion. In all other respects, appellant's judgment is affirmed.
WE CONCUR: FRANSON, Acting P. J., SMITH, J.
Retired Judge of the Merced Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.