People v. Pham CA6

Filed 2/14/23 P. v. Pham CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H049126 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 196642)

v.

DAT DINH PHAM,

Defendant and Appellant.

I. INTRODUCTION Upon a petition by defendant Dat Dinh Pham for resentencing under former Penal Code section 1170.951 (now section 1172.6), the trial court vacated defendant’s 1998 murder conviction and resentenced him to a five-year term for robbery. The court also imposed a two-year period of parole supervision, after rejecting defendant’s contention that his excess custody credits must be applied to the parole supervision period. On appeal, defendant contends that the trial court erred by failing to apply his excess custody credits to his two-year period of parole supervision upon his resentencing under former section 1170.95. For reasons that we will explain, we will affirm the judgment.

1 All further statutory references are to the Penal Code unless otherwise indicated.

II. BACKGROUND A. Defendant’s Initial Sentencing Defendant and several codefendants were charged with the murder of a jewelry salesman in the course of a robbery. Relevant here, in 1998, a jury found defendant guilty of first degree murder and second degree robbery. He was sentenced to 25 years to life for the murder and a five-year term for the robbery. The robbery term was stayed pursuant to section 654. This court affirmed the judgment on direct appeal. (People v. Nguyen et al. (Oct. 6, 2003, H019727) [nonpub. opn.].) B. Former Section 1170.95 Petition for Resentencing In 2020, defendant filed a petition for resentencing in the trial court pursuant to former section 1170.95, contending that he “could not now be convicted of 1st . . . degree murder because of changes made to Penal Code § § 188 and 189, effective January 1, 2019.” Defendant provided witness testimony from trial transcripts in support of his petition. The prosecutor filed a stipulation and waiver of a resentencing hearing. (See former § 1170.95, subd. (d)(2).) The trial court accepted the stipulation and waiver and determined that defendant was entitled to resentencing. C. The Parties’ Sentencing Briefs Regarding Parole Supervision Prior to the resentencing hearing, defendant filed a memorandum contending that his more than 20 years of excess custody credits offset the statutory parole supervision period. He argued that the excess credits must be applied to his parole supervision period based on, among other things, the language of former section 1170.95, subdivision (d)(1), which provided for resentencing “as if the petitioner had not . . . previously been sentenced” (Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019). The prosecutor filed a memorandum in opposition, contending that based on People v. Wilson (2020) 53 Cal.App.5th 42 (Wilson), and People v. Lamoureux (2020) 57 Cal.App.5th 136 (Lamoureux), the trial court had the discretion to impose the maximum period of parole supervision without the application of excess custody credits.