People v. Tokuda CA3

Filed 9/25/20 P. v. Tokuda CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, C089803

Plaintiff and Respondent, (Super. Ct. No. 17CF01918)

v.

KENZO TOKUDA,

Defendant and Appellant.

Appointed counsel for defendant Kenzo Tokuda filed an opening brief setting forth the facts of the case and asking this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After reviewing the entire record, we directed the parties to submit supplemental letter briefs to address whether the trial court erred in sentencing defendant to a seven-year term, rather than aggregating the term with the sentence imposed on defendant by the San Mateo County Superior Court in December 2018.

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In their supplemental letter briefs, defendant argues, and the People concede, the matter should be remanded for resentencing in accordance with Penal Code section 1170.1. We accept the People’s concession and remand the matter accordingly. FACTUAL AND PROCEDURAL BACKGROUND N.V., a minor, attended a house party on December 22, 2016. At that party, N.V. started an argument. N.V. called defendant and a man named Adam Nabhani, both of whom quickly arrived with guns drawn. N.V. yelled, “Shoot these motherfuckers.” The party’s host attempted to calm the situation, but Nabhani pointed his gun at several people and said, “I’ll shoot all you motherfuckers in the head, right now.” Nabhani said, “This is North Side,” and struck one of the partygoers in the face. N.V. tried to take the gun from Nabhani, saying, “You shoot him or I will.” Soon thereafter, the party’s host led the others back to the apartment. Defendant, Nabhani, and N.V. got into a vehicle. As they drove away, Nabhani leaned out of the vehicle and fired shots at the apartment and the party’s host, who feared for his life. Law enforcement subsequently found four nine-millimeter shell casings and two .45-caliber casings at the scene. N.V. told law enforcement that defendant carried a handgun and admitted to her that he also fired it as they were leaving the party. A backpack belonging to defendant was later found, inside it—a handgun and nine- millimeter ammunition. The People charged defendant with assault with a firearm (Pen. Code, § 245, subd. (b); count 1) and shooting at an inhabited dwelling (Pen. Code, § 246; count 2). The People further alleged defendant personally used a firearm in the commission of count 1. Defendant pleaded no contest to shooting at an inhabited dwelling. In exchange for his plea, the People moved to dismiss the remaining count and allegation with a Harvey1