People v. Kim CA4/3

Filed 12/14/21 P. v. Kim CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G059317

v. (Super. Ct. No. 11WF0955)

DUY Q. KIM, OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Cheri T. Pham, Judge. Reversed and remanded. Spolin Law and Aaron Spolin for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent. * * *

INTRODUCTION Defendant Duy Q. Kim was charged with, inter alia, murder, and pled guilty to voluntary manslaughter. When defendant filed a resentencing petition pursuant 1 to Penal Code section 1170.95, the trial court denied it because section 1170.95, by its terms, only applied to individuals convicted of murder. Section 1170.95 has since been amended and, after January 1, 2022, will also apply to those convicted of voluntary manslaughter. In the interests of judicial economy and justice, we will remand this matter to the trial court for further proceedings to be conducted after January 1, 2022.

STATEMENT OF FACTS AND PROCEDURAL HISTORY In October 2012, defendant was charged in an information with murder (§ 187, subd. (a) [count 1]); attempted murder (§§ 187, subd. (a), 664, subd. (a) [count 2]); shooting at an occupied motor vehicle (§ 246 [count 3]); possession for sale of a controlled substance (Health & Saf. Code, § 11378 [count 4]); and street terrorism (§ 186.22, subd. (a) [count 5]). The information alleged as to counts 1 through 3 that (1) defendant was vicariously liable as a principal, and that during their commission another principal had intentionally discharged a firearm, proximately causing great bodily injury or death (§ 12022.53, subds. (d) & (e)(1)) and (2) defendant had committed those offenses for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by members of that gang (§ 186.22, subd. (b)(1)). The information was later amended to allege one count of voluntary manslaughter against defendant (§ 192, subd. (a) [count 7]), with an attendant criminal gang sentencing enhancement allegation (§ 186.22, subd. (b)(1)).