People v. Bui CA6

Filed 5/16/22 P. v. Bui CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H049032 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC894877)

v.

VU MINH BUI,

Defendant and Appellant.

MEMORANDUM OPINION1 In 2011, pursuant to a plea agreement calling for a stipulated sentence of 25 years in state prison, defendant Vu Minh Bui pleaded guilty to attempted murder. (Pen. Code, §§ 664, subd. (a), 187.2) He also admitted a firearm enhancement. (§ 12022.53, subd. (c).) On October 7, 2011, the trial court imposed a total term of 25 years in state prison (composed of five years for the attempted murder conviction and 20 years for the firearm enhancement), with credit for time served of 1,542 days. In July 2020, the Secretary of the California Department of Corrections and Rehabilitation (the Secretary) sent a letter to the trial court recommending that it recall

1 We resolve this case by memorandum opinion under California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853–855.) The facts of Bui’s offense are immaterial to this appeal. 2 Unspecified statutory citations are to the Penal Code.

Bui’s sentence under former section 1170, subdivision (d)(1) and resentence him. The letter explained that section 1170, subdivision (d) allows resentencing “in the same manner as if [the defendant] had not previously been sentenced”; and that, unlike when Bui was originally sentenced, the law now permits courts to exercise their discretion “to strike or dismiss a personal use firearm enhancement at sentencing or resentencing . . . in the interest of justice pursuant to [Penal Code s]ection 1385.” After receiving briefing and hearing oral argument from the parties, the trial court declined to resentence Bui. The trial court’s written order, filed on March 1, 2021, states, “Under section 1170[, subdivision] (d)(1), a court may only resentence, ‘reduce a defendant’s term of imprisonment and modify the judgment, including a judgment entered after a plea agreement, if it is in the interest of justice.’ [] The sentencing court in this matter imposed a sentence that the parties stipulated to in a negotiated plea agreement and that serves the interests of judice. The court finds it would not be in the interest of justice to resentence, reduce and modify the judgment at this time.” Bui appeals from the trial court’s order on the ground the court abused its discretion when it declined to resentence him.3 Bui also asserts that this court should reverse based upon new legislation—namely Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Assembly Bill 1540)—which (he contends) applies retroactively to him. The Attorney General disagrees that the trial court abused its discretion and that the new legislation applies retroactively. Nevertheless, the Attorney General concedes that we should reverse and remand for the trial court to consider the Secretary’s recommendation, given that the law governing recall of sentences has “substantially alter[ed] the framework for recall and resentencing.” The Attorney General states it would be in the interest of judicial efficiency to remand the case to the trial court for reconsideration under the new law.