People v. Phan CA3

Filed 7/26/22 P. v. Phan CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C093093

Plaintiff and Respondent, (Super. Ct. No. 15F00643)

v.

MINHKHA HOANG PHAN,

Defendant and Appellant.

Defendant Minhkha Hoang Phan appeals after the trial court declined to strike his firearm enhancement. He contends he received ineffective assistance of counsel because his counsel completely failed to advocate for him at the resentencing hearing. We find counsel’s failure to request a lesser firearm enhancement prejudiced defendant. We remand for the trial court to consider imposing a lesser firearm enhancement. FACTUAL AND PROCEDURAL BACKGROUND The relevant facts here are taken from our unpublished opinion in defendant’s previous appeal, People v. Phan (June 5, 2020, C086120) [nonpub. opn.]. We granted defendant’s motion to incorporate by reference the record on appeal in Phan.

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Defendant brought a gun with him to a gathering because he feared being robbed on the way home. After a long night of drinking and drug use, defendant quarreled with the victim and fired three close-range shots at him within seconds. The victim died at the scene. Defendant fled and threw away his gun. At trial, defendant claimed he felt threatened by the victim and the shooting was reflexive. (People v. Phan, supra, C086120.) The jury found defendant guilty of first degree murder and found true the firearm enhancement allegation. The trial court sentenced defendant to an aggregate term of 50 years to life, consisting of 25 years to life for the murder conviction and 25 years to life for the firearm enhancement. Defendant appealed the conviction. We affirmed the conviction but remanded for the trial court to consider exercising its new discretion to strike the firearm enhancement under Senate Bill No. 620 (2017-2018 Reg. Sess.). (People v. Phan, supra, C086120.) At the resentencing hearing on October 9, 2020, defendant’s counsel stated to the trial court: “[Y]ou heard the evidence in the trial. . . . [Y]ou’re aware of the standard under [Penal Code section] 1385 and People v. Williams and the Romero case. So I would just ask you to consider everything under those standards and make a decision.” (Italics added.) In response, the People argued “there would be no justice served in getting rid of the 25-to-life sentence.” The trial court started its order by reviewing its discretion to “strike or dismiss the [firearm] enhancement” pursuant to Senate Bill No. 620. It then commented the killing “did not make a lot of sense” because defendant had minimal criminal record and “did not have a reputation for violence.” It acknowledged “there was a lot that we do not know” about the shooting and speculated that “alcohol and drugs contributed to whatever type of confrontation occurred” between defendant and the victim. It also stated twice that the 50 years to life is a “very [harsh] sentence,” likely leaving defendant in prison for the rest of his life. Nevertheless, it concluded the evidence established that defendant