People v. Hoang CA6

Filed 5/10/22 P. v. Hoang CA6 (opinion on transfer from Supreme Court) NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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 under section 12022.53, subdivisions (b) or (c). We previously rejected defendant’s argument and affirmed the trial court’s order declining to strike the section 12022.53, subdivision (d) firearm enhancement. The California Supreme Court granted review, and deferred further action pending consideration and disposition of a related issue in People v. Tirado. (People v. Hoang, review granted Sept. 29, 2021, S270553.) Thereafter, the Supreme Court issued People v. Tirado (2022) 12 Cal.5th 688 (Tirado), which addressed whether a court may impose a

1 All further statutory references are to the Penal Code.

1

lesser uncharged firearm enhancement under section 12022.53, subdivisions (b) or (c) after striking a firearm enhancement under subdivision (d). Tirado concluded that “[w]hen an accusatory pleading alleges and the jury finds true the facts supporting a section 12022.53(d) enhancement, and the court determines that the section 12022.53(d) enhancement should be struck or dismissed . . . the court may . . . impose an enhancement under section 12022.53(b) or (c).” (Tirado, at p. 700.) The California Supreme Court transferred this case back to this court with directions to vacate our decision and reconsider the matter in light of Tirado. We have done so and now reverse the judgment and remand for resentencing. 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 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