Filed 8/25/21 P. v. Thao CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C091344
Plaintiff and Respondent, (Super. Ct. No. 10F06846)
v.
TOU CHRISTMAS THAO,
Defendant and Appellant.
Defendant Tou Christmas Thao appeals the trial court’s denial of the California
Department of Corrections and Rehabilitation’s Penal Code section 1170, subdivision
(d)(1) (section 1170(d)) recommendation that his sentence be recalled, as it might be
unauthorized. The trial court denied the recommendation, concluding the sentencing
court had correctly sentenced defendant, but ordered the abstract of judgment corrected to
reflect the sentence imposed. Defendant contends the original sentencing court did not
properly impose sentence, so the matter must be remanded for resentencing.
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We find no error. However, there is an error in the abstract of judgment that
requires correction. Accordingly, we will order the abstract corrected to reflect the
judgment imposed and affirm the judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
The substantive facts underlying the convictions are not relevant to the issue raised
on appeal and are therefore not recounted here. In 2011, defendant pleaded no contest to
assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(2) - statutory section
references that follow are to the Penal Code.) Defendant also admitted the enhancement
allegations that he personally used a firearm in connection with the crime (§ 12022.5,
subd. (a)), committed the crime for the benefit of, at the direction of, or in association
with a street gang (§ 186.22, subd. (b)(1)(C)), and personally inflicted great bodily injury
upon the victim (§ 12022.7, subd. (a)). The sentencing court sentenced him, pursuant to a
stipulated sentence, to two years on the underlying offense, plus three years for the
firearm enhancement, plus 10 years for the gang enhancement, for a total of 15 years.
Defense counsel reminded the court that defendant admitted the great bodily injury
enhancement. The sentencing court then noted it had given, “no additional time as a
result of that enhancement because that activity is used as part of the 186.22(b)(1)
enhancement. So to avoid double counting, it’s zero time on the 1022.7 [sic]
enhancement.”
In 2018, the California Department of Corrections and Rehabilitation (CDCR) sent
a letter to the trial court recommending the court recall the previously imposed sentence
and resentence defendant pursuant to section 1170, subdivision (d)(1). CDCR indicated
it appeared that defendant was excessively sentenced as the trial court imposed two
enhancements attached to his assault with a deadly weapon offense. (Ibid.) CDCR stated
that pursuant to People v. Rodriguez (2009) 47 Cal.4th 501, only the greater of the two
enhancements should have been imposed.
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As the sentencing judge was no longer available, the matter was assigned to a
different trial court judge for review. The trial court found the sentence imposed was
correct, but that a, “clerical error in the abstract of judgment led to the CDCR’s
determination the sentence may be erroneous.” After reviewing the record, the trial court
found the sentencing court properly imposed and stayed the great bodily injury
enhancement, as that enhancement had been used to support the 10-year gang
enhancement. Because the imposition of the gang enhancement was based on the great
bodily injury enhancement, not the firearm enhancement, the trial court found the
sentencing court correctly imposed sentence on the firearm enhancement. However, the
trial court found the great bodily injury enhancement had been inadvertently omitted
from the abstract of judgment.
The trial court then issued a corrected Felony Abstract of Judgment reflecting that
sentence on the great bodily injury enhancement was imposed and stayed. The corrected
abstract did not, however, state the length of the term imposed.
DISCUSSION
On appeal, defendant argues that because no term was ever imposed on the
enhancement, this matter should be remanded to the trial court to impose and then stay a
term, or to strike the enhancement entirely. Without articulating in his briefing the basis
of the claimed error or the standard of review, defendant claims the matter should be
remanded to the trial court for resentencing. Defendant’s notice of appeal identifies the
order appealed from as the order denying the CDCR section 1170(d)(1) recommendation.
As defendant’s judgment is long since final, this is the only ground on which he could
seek this relief on appeal. Accordingly, we construe defendant’s claim as a challenge to
the denial of the CDCR section 1170(d)(1) recommendation and apply the standards of
review relevant to that claim.
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“We review the trial court’s decision whether to recall a defendant’s sentence for
an abuse of discretion.” (People v. McCallum (2020) 55 Cal.App.5th 202, 211.) Using
this standard, we consider whether the ruling, “exceeds the bounds of reason or is
arbitrary, whimsical or capricious. [Citations.] This standard involves abundant
deference to the trial court’s rulings.” (People v. Jackson (2005) 128 Cal.App.4th 1009,
1018.) The trial court’s factual findings upon which it bases its discretionary
determinations are subject to review under the substantial evidence standard. (See
People v. Cluff (2001) 87 Cal.App.4th 991, 998 [court abuses discretion when factual
findings critical to decision find no support in evidence].) Under the substantial evidence
standard, we review the entire record in the light most favorable to the court’s factual
findings to determine whether it discloses evidence that is reasonable, credible, and of
solid value such that a reasonable trier of fact could make those factual findings by a
preponderance of the evidence. (See People v. Bolin (1998) 18 Cal.4th 297, 331.) We
“must assume every fact and inference in favor of the judgment.” (People v. Wise (1962)
199 Cal.App.2d 57, 59.) “Absent evidence to the contrary, we presume that the trial
court knew and applied the governing law.” (People v. Gutierrez (2014) 58 Cal.4th 1354,
1390.)
We find the there is substantial evidence supporting the trial court’s finding that
the sentencing court imposed and stayed the great bodily injury enhancement. The
authorities cited as the basis for the CDCR recommendation, Rodriguez and section 1170,
subdivision (g), had long been the law at the time defendant was sentenced. The
sentencing court sentenced defendant to the stipulated term agreed to by defendant and
counsel. There was no discussion of striking the enhancement. Rather, when prompted
about the great bodily injury enhancement, the sentencing court recognized that it could
not impose and execute sentences on both the great bodily injury enhancement as well as
the gang enhancement. Thus, the sentencing court imposed the enhancement with “zero”
time. On this record, it is reasonable to infer that the sentencing court and the parties
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were aware of Rodriquez and did not agree to, or impose, a sentence in violation of it. It
is also reasonable to infer that the sentencing court’s statements specifically regarding the
great bodily injury enhancement reflected the sentencing court imposing sentence on the
enhancement and staying it, in accordance with the stipulated sentence. Accordingly,
substantial evidence supports the trial court’s finding that sentence on the great bodily
injury enhancement was properly imposed and stayed. The trial court also correctly
noted that although the oral pronouncement of sentence had imposed and stayed the
enhancement, the abstract of judgment did not reflect this sentence. Thus, the trial court
ordered that clerical error be corrected. We agree with the trial court’s conclusion
concerning the clerical error, but note the corrected abstract of judgment does not reflect
the length of the term imposed. Appellate courts have the inherent power to correct
clerical errors in a judgment at any time. (People v. Mitchell (2001) 26 Cal.4th 181,
185.) “Rendition of the judgment is normally an oral pronouncement, and the abstract of
judgment cannot add to, or modify, the judgment, but only purports to digest and
summarize it.” (People v. Zackery (2007) 147 Cal.App.4th 380, 384.) “Where there is a
discrepancy between the oral pronouncement of judgment and the minute order or the
abstract of judgment, the oral pronouncement controls.” (Id. at p. 385.) We shall
therefore direct the clerk to correct the abstract of judgment accordingly.
DISPOSITION
The judgment is affirmed. The clerk of the court is directed to correct the abstract
of judgment to reflect the three-year term imposed and stayed on the section 12022.7
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great bodily injury enhancement, and to forward a copy of the corrected abstract of
judgment to the Department of Corrections and Rehabilitation.
HULL, J.
We concur:
BLEASE, Acting P. J.
ROBIE, J.
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