Opinion
G051977
02-07-2017
THE PEOPLE, Plaintiff and Respondent, v. AN NGOC DAI DANG, Defendant and Appellant.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13CF1682) OPINION Appeal from a judgment of the Superior Court of Orange County, Nancy E. Zeltzer, Judge. Affirmed and remanded with directions Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant An Ngoc Dai Dang appeals from the judgment entered after a jury found him guilty of one count each of pimping and pandering. The trial court sentenced him to four years in prison for the pimping offense and stayed sentencing on the pandering offense under section 654 of the Penal Code. (All further statutory references are to the Penal Code.) Dang argues the trial court erred by failing to impose sentence on the pandering offense before staying execution of the sentence. The Attorney General agrees with Dang's contention.
We affirm the judgment and remand with directions that the trial court impose sentence on the pandering offense and then order execution of that sentence stayed under section 654.
FACTS
On June 14, 2012, Santa Ana Police Detective John Holcomb investigated an advertisement he had found on a Web site known for containing advertisements for businesses that acted as fronts for prostitution activities. The advertisement, which contained language to the effect of "pretty Asian girls . . . tasting sweet like sugar," listed a location in Santa Ana that caught Holcomb's attention because he thought that location had been vacant. Holcomb called the telephone number listed on the advertisement and a man with an accent, which Holcomb "recognized to be an Asian accent," answered.
Holcomb asked if there were any pretty girls there; the man responded in the affirmative and added that a 30-minute massage was $40. The man told Holcomb to come to the business right then because it was not busy.
Holcomb and his investigation team drove to the location. The front of the business was blacked out, which, Holcomb testified, was not unusual for businesses engaged in prostitution activities.
Holcomb walked into the business and was met by an Asian woman. He told her that he was there for the 30-minute massage and she told him it would cost $40. He handed her $40. The woman took the money to an office area where she handed it to Dang. The woman told Holcomb to follow her; he followed her to a room. She told him to remove his clothes and she would be right back. Holcomb set up his cellphone so that his team could hear his interactions and receive his signal when he wanted them to come into the business.
When the woman returned to the room, she asked Holcomb what he wanted and he said a "good massage." She informed him, "hand jobs were $60 and blow jobs were a hundred." Holcomb responded he did not have $100 but "would love a blow job for $80." She said, "okay, you pay me now." He paid her $80; she took the money, and walked out of the room. When she returned, she closed and locked the door, and then undressed.
Holcomb signaled to his team to enter the business. The woman, whom Holcomb encountered, was later identified as Dang's wife; she was arrested. Holcomb spoke with Dang, who initially denied having anything to do with the business, claiming he was only there to drop his wife off at work.
After Dang was read his rights under Miranda v. Arizona (1966) 384 U.S. 436, in response to questions about why he would allow his wife to "give strange men blow jobs," Dang began to cry and stated, "we need money."
PROCEDURAL BACKGROUND
Dang was charged in an information with one count of pimping in violation of section 266h, subdivision (a) (count 1), and one count of pandering in violation of section 266i, subdivision (a) (count 2). A jury found Dang guilty as charged on both counts.
The trial court imposed a total prison sentence of four years by sentencing Dang to the middle term of four years on the pimping offense and "stay[ing] prison sentence pursuant to Penal Code [section] 654" on the pandering offense. Dang appealed.
DISCUSSION
Dang argues that the trial court improperly failed to impose sentence on his conviction for pandering before staying execution of sentence on that count under section 654. We agree.
Section 654, subdivision (a) provides that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
In People v. Duff (2010) 50 Cal.4th 787, 795-796, the California Supreme Court explained: "Originally, some controversy existed regarding the appropriate procedure for sentencing courts to follow in carrying out the mandate of section 654. Courts were concerned that, if they dismissed the count carrying the lesser penalty, and the count carrying the greater term was reversed or vacated on direct appeal or through collateral review, the defendant could escape punishment entirely. [Citations.] Staying imposition of sentence also was not a satisfactory solution. '"Upon conviction it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed. [Citations.] Pursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion."' [Citation.] [¶] Imposition of concurrent sentences also was inappropriate, because such sentences were considered to still punish the defendant for both offenses. 'It has long been established that the imposition of concurrent sentences is precluded by section 654 [citations] because [under such a sentence] the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.' [Citations.]"
The Supreme Court continued: "Accordingly, rather than dismissing charges or imposing concurrent sentences, when 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, a resolution we anticipated would prevent the addition of incremental punishment. [Citations.] . . . The sentencing court should stay execution of sentence pending completion of service of sentence upon the greater offense, with the stay to become permanent upon completion of that sentence. [Citations.]" (People v. Duff, supra, 50 Cal.4th at p. 796.)
In the respondent's brief, the Attorney General agrees the trial court erred by failing to impose sentence on the pandering offense before staying execution of sentence. The Attorney General further agrees this court should remand the matter to the trial court to impose sentence and then order execution of that sentence stayed under section 654.
We agree the trial court erred by failing to impose sentence on the pandering count. We remand to the trial court to impose sentence on the pandering count and order execution of that sentence stayed under section 654.
DISPOSITION
The judgment is affirmed. We remand to the trial court with directions that the court impose sentence on the pandering count (count 2) and then order execution of sentence stayed under section 654. We further direct the trial court to prepare an amended abstract of judgment, reflecting the imposition of sentence on count 2 and the stay of execution of that sentence, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
FYBEL, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.