People v. Dang CA6

Filed 5/9/16 P. v. Dang CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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