People v. Vang CA3

Filed 11/29/22 P. v. Vang CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C094219

Plaintiff and Respondent, (Super. Ct. No. 16FE022310)

v.

TENG VANG,

Defendant and Appellant.

Appealing the trial court’s 2021 resentencing following his 2020 direct appeal, defendant Teng Vang now contends: (1) Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699 (Assembly Bill 333)) requires reversal of his gang enhancements; (2) failure to bifurcate the adjudication of his gang enhancement charges and the underlying offenses upon defendant’s request, as now required by Assembly Bill 333, requires reversal of his guilty verdicts; (3) the reimposition of his fines and fees without determining his ability to pay violated his constitutional rights; and (4) the trial court

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erred in failing to recalculate his custody credits. The People concede the first and last contentions. We accept these concessions and reject defendant’s remaining contentions, finding defendant forfeited the bifurcation claim and is barred from reprising his claim regarding fines and fees, which we rejected in his prior appeal. We will reverse the jury’s gang- related enhancement findings and remand to give the People an opportunity to retry them under the amended law, direct the trial court to recalculate defendant’s custody credits, and otherwise affirm the judgment. I. BACKGROUND In 2018, a jury found defendant guilty of five felonies—possessing three firearms (Pen. Code, § 29800, subd. (a)(1); counts two, five, and six),1 a silencer (§ 33410; count one), and ammunition (§ 30305, subd. (a)(1); count three)—and misdemeanor possession of marijuana for sale (Health & Saf. Code, § 11359, subd. (b); count seven).2 The jury found that the offenses were committed for the benefit of a criminal street gang, Menace of Destruction (MOD).3 At trial, officers described MOD’s pattern of criminal activity based on three members’ firearm possession offenses, defendant’s longstanding affiliation with MOD, and how MOD would have benefitted financially from drug sales and reputationally from loaded guns. The trial court separately found defendant had sustained two prior serious felony convictions and denied his request to strike prior strikes. Under the Three Strikes law, the court sentenced defendant to consecutive indeterminate prison terms of 25 years to life for each new felony (§ 667, subd. (e)(2)(A)(ii)), totaling 125 years to life. For the