Filed 5/9/16 P. v. Dang CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H042807
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1094291)
v.
THANH TOAN DANG,
Defendant and Appellant.
Defendant Thanh Toan Dang appeals after a resentencing hearing conducted
pursuant to this court’s orders in defendant’s prior appeal. (People v. Dang (July 30,
2014, H038871) [nonpub. opn.].)1
On appeal, defendant’s appointed counsel has filed a brief pursuant to People v.
Wende (1979) 25 Cal.3d 436 that states the case and facts, but raises no issue. We
notified defendant of his right to submit written argument on his own behalf within
30 days. The 30-day period has elapsed and we have received no response from
defendant.
Pursuant to People v. Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006)
40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme
Court’s direction in People v. Kelly, supra, at page 110, we provide a brief description of
the facts and the procedural history of the case.
1
We take judicial notice of this court’s prior opinion in this matter.
FACTUAL AND PROCEDURAL BACKGROUND
A. Convictions, Original Sentence, and Prior Appeal
After a shooting at the Anh Thu restaurant in the early hours of November 20,
2010, a jury convicted defendant of willful, deliberate, and premeditated attempted
murder (Pen. Code, §§ 187, 664, subd. (a))2 and assault with a semiautomatic firearm
(§ 245, subd. (b)). The jury found true allegations that defendant personally and
intentionally discharged a firearm (§ 12022.53, subd. (d)) during the attempted murder
and allegations that defendant personally used a firearm (§ 12022.5, subd. (a)) and
inflicted great bodily injury (§ 12022.7, subd. (a)) during the assault with a
semiautomatic firearm. The trial court found true allegations that defendant had
previously been convicted of a prior serious felony (§ 667, subd. (a)) and a strike (§§ 667,
subds. (b)-(i), 1170.12).
The trial court sentenced defendant to a prison term of 30 years to life: a term of
25 years to life for count 1 (attempted murder) consecutive to a five-year term for the
prior serious felony allegation (§ 667, subd. (a)). The trial court imposed a determinate
term of 28 years for count 2 (assault with a semiautomatic firearm), comprised of a 10-
year term for the substantive offense, a consecutive 10-year term for the firearm use
allegation (§ 12022.5, subd. (a)), a consecutive three-year term for the great bodily injury
allegation (§ 12022.7, subd. (a)), and a consecutive five-year term for the prior serious
felony allegation (§ 667, subd. (a)). However, the trial court stayed the term for count 2
pursuant to section 654.
Defendant appealed, and this court affirmed his convictions. However, this court
found that the sentence imposed was unauthorized in several respects. First, as to
count 1, the trial court should have imposed a sentence of life with the possibility of
parole pursuant to section 664, subdivision (a). Under the Three Strikes law, the 7-year
2
All further statutory references are to the Penal Code unless otherwise indicated.
2
minimum parole eligibility date (§ 3046, subd. (a)) should have been doubled to 14 years,
although the trial court could have dismissed the strike allegation. (See People v.
Jefferson (1999) 21 Cal.4th 86, 96.) The trial court should have imposed a separate and
consecutive term of 25 years to life for the section 12022.53, subdivision (d) allegation,
and a consecutive five-year term for the 667, subdivision (a) allegation.
Second, as to count 2, the upper term was nine years, not ten years. (See § 245,
subd. (b).) The trial court could have dismissed defendant’s prior strike as to that count
(see People v. Garcia (1999) 20 Cal.4th 490, 492-493 (Garcia)); if not, the court was
required to double that term to 18 years and then add the enhancements, which were
properly calculated at 10 years (§ 12022.5, subdivision (a)), three years (§ 12022.7,
subd. (a)), and five years (§ 667, subd. (a)).
This court found it was not clear from the record whether the trial court would
have exercised its discretion to dismiss the strike allegation as to one or both counts.
(See Garcia, supra, 20 Cal.4th at pp. 492-493.) Therefore, this court reversed the
judgment and remanded for resentencing.
B. Proceedings on Remand
Defendant filed a written motion requesting the trial court exercise its discretion to
dismiss the strike allegation (see People v. Superior Court (Romero) (1996) 13 Cal.4th
497), noting that if the strike was dismissed, he would still face a minimum term greater
than the original sentence of 30 years to life. The People opposed the motion, arguing
that defendant did not fall outside the spirit of the Three Strikes law.
At a hearing on July 24, 2015, the trial court declined to dismiss the strike
allegation, finding defendant was “the quintessential Three Strikes life candidate.” The
trial court then imposed a sentence consisting of an indeterminate term of 39 years to life
consecutive to a five-year determinate term. For count 1, the trial court imposed a term
of 14 years to life for the attempted murder, with a consecutive term of 25 years to life
for the section 12022.53, subdivision (d) allegation and a consecutive five-year term for
3
the section 667, subdivision (a) allegation. For count 2, the trial court imposed an
aggregate determinate term of 36 years, consisting of an 18-year term for the assault with
a semiautomatic firearm, with a consecutive term of 10 years for the section 12022.5,
subdivision (a) allegation, a consecutive term of three years for the section 12022.7,
subdivision (a) allegation, and a consecutive term of five years for the section 667,
subdivision (a) allegation. The trial court ordered the term for count 2 stayed pursuant
to section 654.
DISCUSSION
Having carefully reviewed the entire record, we conclude that there are no
arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d at pp. 441-443.)
DISPOSITION
The judgment is affirmed.
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____________________________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
_________________________________
ELIA, ACTING P.J.
_________________________________
MIHARA, J.