People v. Hoang

Filed 7/22/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H046550 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1370251)

v.

HAN QUOC HOANG,

Defendant and Appellant.

Defendant Han Quoc Hoang challenges the trial court’s ruling declining to exercise its discretion, under Penal Code section 12022.53, subdivision (h),1 to strike defendant’s section 12022.53, subdivision (d) firearm enhancement. Defendant argues that the court abused its discretion by refusing to consider imposing a lesser firearm enhancement, as provided for in People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison). We conclude, contrary to Morrison, that section 12022.53, subdivision (h) authorizes a court to exercise discretion to strike or dismiss a firearm enhancement only; it does not authorize a court, in the furtherance of justice, to impose a lesser firearm enhancement that was neither alleged nor found to be true. I. BACKGROUND2 On November 14, 2013, the victim went to a parking lot to purchase cocaine from another individual. The victim was in his car. Defendant approached the victim, passed

1 All further references are to the Penal Code unless otherwise indicated. This court granted defendant’s request for judicial notice of the record and 2

opinion in his prior appeal (People v. Hoang (April 27, 2018, H042876) [nonpub. opn.].) The procedural history set forth below is taken in part from our prior opinion.

his hand in and then out of the driver’s side window, and pulled out a gun. He then moved away from the car and fatally shot the victim. The prosecution’s theory was that defendant intended to rob the victim and shot him when he resisted. Defendant testified at trial that he shot the victim in self defense. Defendant was charged with murder (§ 187) and second degree robbery (§§ 211- 215, subd. (c)). As to each count, it was also alleged that defendant personally discharged a firearm, causing the victim’s death (§ 12022.53, subd. (d)). A jury convicted defendant of second degree murder, found true the firearm enhancement allegation, but could not reach a verdict on the robbery count, and the trial court declared a mistrial on that count. The court sentenced defendant to an indeterminate term of 40 years to life, consisting of 15 years to life for the murder and 25 years to life for the section 12022.53, subdivision (d) enhancement. Defendant appealed. While the appeal was pending, section 12022.53, subdivision (h) was amended3 to state: “The court may, in the interests of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section.” This court reversed the judgment and “remanded for the sole purpose of allowing the trial court to exercise its discretion under section 12022.53, subdivision (h), by deciding whether to strike defendant’s section 12022.53 firearm enhancement.” After a hearing, the trial court declined to exercise its discretion to strike the firearm enhancement, finding that it would not be “in the interest of justice to strike or dismiss the enhancement” as requested. Defense counsel also requested that the court consider “the possibility of giving a ten- or a 20-year enhancement.” The court stated it would not consider the request: “[T]he remittitur specifically says that it’s remitted to the