People v. Tan

Filed 8/19/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B308687

Plaintiff and Respondent, Los Angeles County Super. Ct. No. BA131282 v.

TAK SUN TAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen A. Marcus, Judge. Affirmed as modified with directions. Brian C. McComas, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

In 1998, defendant Tak Sun Tan was convicted of robbery and first degree murder. In 2020, the trial court vacated Tan’s murder conviction under Penal Code1 section 1170.95, resentenced him on the robbery count, and ordered him released on time served. The court also imposed a three-year parole term. On appeal, Tan contends section 3000.01, which was enacted before he was resentenced in this case, limits his parole term to two years. The People concede the point, and, as a matter of first impression, we agree. We therefore modify Tan’s sentence to reflect a two-year parole term and affirm as modified.

BACKGROUND2

In 1998, Tan was convicted of one count of first degree murder (§ 187; count 1) and one count of robbery (§ 211; count 2). The jury found firearm allegations (§ 12022, subd. (a)(1)) true for both counts. Tan admitted a prior conviction that had been alleged as both a strike prior (§§ 1170.12, subds. (a)–(d), 667, subds. (b)–(i)) and a serious-felony prior (§ 667, subd. (a)). The court sentenced him to an aggregate indeterminate term of 56 years to life for count 1 and stayed count 2 under section 654. On January 1, 2019, Senate Bill No. 1437 (Stats. 2018, ch. 1015), changed sections 188 and 189 governing accomplice liability for felony murder and murder under the natural and probable consequences doctrine. As part of the bill, the