People v. Thao CA3

Filed 8/25/21 P. v. Thao CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

1

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.