Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC327374
Mihara, Acting P. J.
The appeal in the present case follows defendant Tam Minh Vo’s prior appeal and the remand for resentencing in that appeal. We conclude that defendant’s contention regarding Penal Code section 654 is barred under the law of the case doctrine. We also conclude that the abstracts of judgment and the minute order should be corrected to reflect that defendant’s prior Minnesota conviction allegations were dismissed. As modified, the judgment is affirmed.
Pursuant to Evidence Code section 452, subdivision (d), we have taken judicial notice of the record from defendant’s prior appeal in People v. Vo (June 13, 2007, H029339) [nonpub. opn.] (Vo I).
All further statutory references are to the Penal Code.
I. Statement of the Case
In March 2005, a jury found defendant guilty of attempted willful, deliberate, premeditated murder (§§ 187, 189, 664 – count 1), assault with a firearm (§ 245, subd. (a)(2) – count 2), and ex-felon in possession of a firearm (§ 12021, subd. (a)(1) – count 3). The jury also found true the allegations that defendant personally discharged a firearm and proximately caused great bodily injury (§§ 12022.7, 12022.53, subd. (d)) in the commission of count 1, and that defendant personally used a firearm and personally inflicted great bodily injury (§§ 12022.5, subd. (a), 12022.7, subd. (a)) in the commission of count 2. In a bifurcated proceeding, the trial court found that defendant had suffered four prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) and two prior serious felony convictions (§ 667, subd. (a)), and had served one prior prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to an indeterminate term of 68 years to life consecutive to a determinate term of 11 years.
Following an appeal, this court reversed the judgment in Vo I. This court struck the one-year prior prison term imposed for the ex-felon in possession of a firearm conviction. This court also reversed the true finding on the allegations that defendant suffered two prior convictions in Minnesota for aggravated robbery, and held that those allegations could be retried. However, if the allegations were found not true, or were not retried, the trial court was directed to resentence defendant. (Vo I, supra, [at p. 31].)
In November 2007, the prosecutor informed the trial court that it would not retry the Minnesota conviction allegations due to insufficiency of the evidence. Accordingly, the trial court dismissed two prior strike conviction allegations and one prior serious felony conviction allegation. After defendant then renewed his motion to strike the remaining prior conviction allegations pursuant to section 1385, the trial court granted the motion in part, and struck one of the two prior conviction allegations. The trial court then sentenced defendant to an indeterminate term of 39 years to life consecutive to a determinate term of five years.
II. Statement of Facts
At about 10 p.m. on August 9, 2003, Phong Vu (Phong) went to a restaurant and sat at table five with some of his friends. Defendant and others were sitting at table 17. About 10 to 15 minutes later, a group, including Ngoc Nguyen (Jimmy) and Co Tran (Co), from table 17 left the restaurant. About 10 minutes later, Co ran into the restaurant and told Phong there was “trouble” or “a problem.” Phong walked towards the door. As defendant opened the door to the restaurant, Jimmy saw him pull out a gun and say “something like, fuck you, fuck you.” Defendant shot Phong three times and ran out the door.
While the group was outside, one of the owners of the restaurant saw Jimmy pull either a knife or gun out of his pants. Jimmy denied that he had a knife or gun with him on the night of the shooting.
III. Discussion
A. Section 654
Defendant contends that the trial court erred by imposing a four-year concurrent term on count 3 (ex-felon in possession of a weapon) rather than staying imposition of sentence on that count pursuant to section 654.
“Under the law of the case doctrine, when an appellate court ‘ “states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case’s] subsequent progress, both in the lower court and upon subsequent appeal....” ’ [Citation.] Absent an applicable exception, the doctrine ‘requir[es] both trial and appellate courts to follow the rules laid down upon a former appeal whether such rules are right or wrong.’ [Citation.] As its name suggests the doctrine applies only to an appellate court’s decision on a question of law; it does not apply to a question of fact.” (People v. Barragan (2004) 32 Cal.4th 236, 246.) A legal determination regarding the sufficiency of the evidence is an issue of law, not of fact. (People v. Shuey (1975) 13 Cal.3d 835, 841, overruled on another point as recognized by People v. Bennett (1998) 17 Cal.4th 373, 389.)
In Vo I, this court considered whether the trial court erred in failing to stay imposition of sentence on count 3 (ex-felon in possession of a weapon) pursuant to section 654. We summarized the relevant principles of law: “Section 654 provides, in relevant part, 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.’ Thus, section 654 precludes multiple punishment ‘where the convictions arise out of an indivisible transaction and have a single intent and objective.’ (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.) ‘Where a defendant entertains multiple criminal objectives independent of and not merely incidental to each other, he may be punished for more than one crime even though the violations share common acts or are part of an otherwise indivisible course of conduct.’ (People v. Blake (1998) 68 Cal.App.4th 509, 512.) The trial court’s determination that a defendant maintained multiple criminal objectives is a question of fact that must be upheld if supported by substantial evidence. (People v. Harrison (1989) 48 Cal.3d 321, 335.) [¶]... ‘[I]f the evidence demonstrates at most that fortuitous circumstances put the firearm in the defendant’s hand only at the instant of committing another offense, section 654 will bar a separate punishment for the possession of the weapon by an ex-felon.’ (People v. Ratliff (1990) 223 Cal.App.3d 1401, 1412.)” (Vo I, supra, [at p. 30].) Applying these principles, this court held that “defendant’s possession of the firearm was not merely incidental to the attempted murder,” and thus “[t]he trial court did not err in imposing a concurrent term on count 3.” (Vo I, at [p. 30].) These legal principles were necessary to our prior decision, and thus defendant may not now seek reconsideration of this issue.
Defendant asserts, however, that he may raise this contention because it falls within the unjust decision exception to the law of the case doctrine. He argues that there was “no evidence of antecedent possession of the weapon” prior to the shooting.
The law of the case doctrine “will not be adhered to where its application will result in an unjust decision, e.g., where there has been a ‘manifest misapplication of existing principles resulting in substantial injustice’ or the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations.” (People v. Stanley (1995) 10 Cal.4th 764, 787, internal citations omitted.)
In our view, defendant has not demonstrated that this court committed a manifest injustice by concluding that section 654 did not bar the imposition of the concurrent term for count 3. “ ‘[W]here the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper....’ ” (People v. Bradford (1976) 17 Cal.3d 8, 22, quoting People v. Venegas (1970) 10 Cal.App.3d 814, 821.) In the present case, there was substantial evidence to support the trial court’s decision to impose separate terms. A reasonable inference based on the evidence is that defendant possessed the gun before he entered the restaurant. As such, the commission of the section 12021 violation was complete before the attempted murder even occurred.
B. Minute Order and Abstract of Judgment
Defendant contends, and the People correctly concede, that the minute order and the abstracts of judgment must be corrected to reflect that the trial court dismissed, on the People’s motion, the allegations that defendant suffered two prior convictions in Minnesota for aggravated robbery.
The minute order and the abstracts of judgment erroneously indicate that the allegations relating to the Minnesota convictions were dismissed pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. However, the trial court dismissed the allegations after the prosecutor indicated that the issue of whether defendant’s prior Minnesota convictions constituted strike priors would not be litigated due to insufficient evidence.
The trial court’s oral pronouncement of sentence controls over the clerk’s minute order or the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) Thus, the matter must be remanded to correct the clerical error.
IV. Disposition
The trial court is directed to prepare an amended minute order and abstract of judgment reflecting that the trial court dismissed the allegations that defendant suffered two prior convictions in Minnesota for aggravated robbery, and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
WE CONCUR: McAdams, J., Duffy, J.