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The People v. Kenny Minh Phan


December 7, 2010


Appeal from a judgment of the Superior Court of Orange County, James Patrick Marion, Judge. Affirmed in part, reversed in part and remanded for resentencing. (Super. Ct. No. 08CF1289)

The opinion of the court was delivered by: Moore, J.



Phan CA4/3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


Defendant Kenny Minh Phan was convicted of misdemeanor vehicular manslaughter and felony fleeing the scene of an injury accident. The jury found he inflicted great bodily injury in connection with the latter offense. We reverse that finding for the reasons set forth in our recent opinion in People v. Valdez (2010) 189 Cal.App.4th 82. Because defendant was convicted of one felony and that felony is not a serious felony within the meaning of Penal Code section 667, subdivision (a)(1), absent the attached great bodily injury enhancement (see Pen. Code, § 1192.7, subd. (c)(8)), we must also reverse the five-year enhancement imposed pursuant to section Penal Code section 667, subdivision (a)(1).



Defendant was charged in an information with fleeing the scene of an injury accident (Veh. Code,*fn1 20001, subd. (a), a felony; count one), vehicular manslaughter without gross negligence (Pen. Code, § 192, subd. (c)(2), a misdemeanor; count two), and failing to stop for a red light (§ 21453, subd. (a), an infraction; count three). The information also alleged defendant personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)) in the commission of count one, and that defendant had suffered a prior felony conviction within the meaning of our "Three Strikes" law (Pen. Code, §§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)) and had suffered a prior conviction for a serious felony (Pen. Code, § 667, subd. (a)(1)).

The court bifurcated the trial of the prior conviction allegations and the infraction from the trial on counts one and two. The jury found defendant guilty of the charged offenses, and found the great bodily injury enhancement true. The court found defendant guilty of the infraction and found the prior conviction allegations true. The court denied defendant's request to strike his prior "strike" conviction and sentenced defendant to 10 years and eight months in state prison, consisting of a 16-month low term for fleeing the scene of an injury accident, doubled to two years eight months because of defendant's prior "strike," plus three years for the great bodily injury enhancement and five years for defendant's prior serious felony conviction. The court sentenced defendant to six months on the misdemeanor manslaughter and ordered the sentence to run concurrently with defendant's state prison sentence.

The facts relevant to imposition of the great bodily injury enhancement may fairly be summarized as follows: On January 25, 2008, defendant was eastbound on Westminster Avenue in Orange County and drove through a red light at the intersection of Euclid and Westminster, colliding in the intersection with the northbound vehicle being driven by Richard Lauvao. Defendant's car, already smoking from the collision, then swerved to the left to avoid hitting a car in the westbound right turn lane before going onto a sidewalk, crossing back over the center median, and colliding with a third vehicle. Lauvao's vehicle spun out of control and stopped by the northeast corner of the intersection.

The driver of the car in the westbound right turn lane, Tony Garcia, ran to the car driven by defendant and opened the passenger side door to see if anyone was hurt. Dung Luong was in the passenger seat. Defendant, opened the driver's door a second or two later, got out of the car, looked at Garcia, and "took off running."

Garcia's passenger, Brenda Velasquez, went to Lauvao's vehicle. The passenger door was open and Lauvao's feet were outside the car. His shoulder belt was still on. Lauvao had been partially decapitated by the shoulder belt. Corporal John Crews of the Santa Ana Police Department testified Lauvao's vehicle had the "old-fashioned" seatbelt configuration: a shoulder belt and a separate lap belt, each with its own locking mechanism. Lauvao's lap belt was not fastened. Because it had not been fastened, Lauvao's lower body was not restrained and continued in motion while his upper body was restrained, causing the partial decapitation.



A. The Great Bodily Injury Enhancement

Defendant was involved in a traffic accident that resulted in Lauvao's death. While the collision was defendant's fault,*fn2 he was not engaged in commission of a felony or an attempt to commit a felony at the time of the collision. The jury found defendant guilty of fleeing the scene of the injury accident. (§ 20001, subd. (a).) It also found true the great bodily injury enhancement attached to that charge. The enhancement provided by Penal Code section 12022.7, subdivision (a) applies when a person "personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony . . . ." (Italics added.) Every driver involved in an injury accident is obligated to stop and render aid. (§§ 20003, 20004.) The gravamen of the offense of fleeing an injury accident and the act punished is the flight, not the accident. (People v. Braz (1998) 65 Cal.App.4th 425, 433.) As a result, we recently held in People v. Valdez, supra, 189 Cal.App.4th 82, that injuries sustained in an accident are not inflicted in the commission of or attempted commission of a felony based upon the defendant's subsequent flight. (Id. at pp. 88-89.)

Valdez controls here. Lauvao was decapitated in the accident. Defendant's flight neither caused the injury nor made it worse. As a result, the injury was not inflicted during defendant's subsequent felonious conduct (flight). In fact, death preceded defendant's felonious conduct. Therefore, the evidence does not support the Penal Code section 12022.7, subdivision (a) great bodily injury finding, and that finding must be reversed as the Attorney General conceded at oral argument.

Because we reverse the finding on the great bodily injury enhancement, we do not address defendant's claim that his counsel was ineffective for failing to object to the amendment of the information adding the great bodily injury enhancement allegation, failing to bring a Penal Code section 995 motion to dismiss the enhancement, or failing to move to dismiss the enhancement during trial. Neither do we address defendant's contention that Penal Code section 654 required the trial court to stay the punishment on the great bodily injury enhancement.

B. The Five-Year Prior Conviction

Penal Code section 667, subdivision (a)(1) mandates the imposition of a five-year enhancement for a defendant convicted of a serious felony and who has previously been convicted of a serious felony. "Serious felony" is defined in Penal Code sections 1192.7, subdivision (c), and 1192.8. Subdivision (c) of Penal Code section 1192.7 lists 42 subdivisions designating offenses and acts that qualify an offense as a serious felony. First degree burglary is a serious felony. (Pen. Code, § 1192.7, subd. (c)(18).) Defendant was found to have previously been convicted of a first degree burglary and the trial court imposed a Penal Code section 667, subdivision (a)(1) five-year enhancement for that prior conviction. It is evident the court did so based upon the jury's great bodily injury finding, which -- if valid -- would have made the felony conviction a serious felony.

Fleeing the scene of an injury accident (§ 20001, subd. (a)) is not listed in Penal Code section 1192.7 as a serious felony. "[W]here the defendant causes serious bodily injury by the manner of the original impact with the victim while driving and thereafter fails to stop as required by Vehicle Code section 20001, such conduct does not qualify as a serious felony under Penal Code section 1192.7, subdivision (c)(8)." (People v. Wood (2000) 83 Cal.App.4th 862, 867, fn. omitted.) On the other hand, "any felony in which the defendant personally inflicts great bodily injury on any person other than an accomplice" is a serious felony. (Pen. Code, § 1192.7, subd. (c)(8).) However, as defendant did not inflict great bodily injury in the commission of the felony, subdivision (c)(8) of Penal Code section 1192.7 does not apply.

Because defendant does not stand convicted of a serious felony, the court erred in imposing a Penal Code section 667, subdivision (a)(1) five-year enhancement. This determination does not affect the finding that defendant has suffered a prior "strike" conviction.

C. Sentencing

Defendant contends the trial court erred in denying his motion to strike his prior strike conviction so he could be sentenced as if he had not suffered the prior conviction. A trial court, of course, has discretion to dismiss or strike a prior strike conviction allegation or finding. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) In determining "whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, 'in furtherance of justice' pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)

The trial court found defendant falls within the spirit of the Three Strike law. We cannot say the court abused its discretion when it declined to strike the prior conviction. Defendant suffered a conviction for first degree burglary in 1999. He received a grant of probation and was ordered to serve 240 days in jail. Two years later he was involved in an altercation with a security guard at a bar, resulting in another probation grant and 10 more days in jail. Also in 2001, defendant was stopped by police for a traffic citation, presented the officer another person's driver's license, and signed the citation with the other person's name. That conviction resulted in yet another grant of probation and more time in jail. There was other incident during this time that did not result in prosecution. Two years later defendant was convicted of driving under the influence. In this case, defendant not only fled from the collision that resulted in the death of the other driver, he fled leaving his own passenger injured. Defendant contends he has turned his life around since he became a father in 2002, but the fact that he has been supporting his son on his own does not mean defendant must be deemed outside the sentencing scheme of the Three Strike law. Accordingly, we find the trial court did not err in declining to strike the prior conviction.

In reaching this conclusion we reject defendant's contention that the trial court abused its discretion in denying the request to strike the prior conviction because it believed defendant was intoxicated at the time of the accident. The court stated that defendant's "story" of why he fled the scene "doesn't make sense and sounds made up to fit what his defense was going to be. It just doesn't come across or didn't come across as true. [¶] The person who [defendant] is in the car with was drunk and he's interviewed at the hospital and he gives a couple of stories. One story is [that the passenger] just met [defendant] at the bar and later [the passenger] gives another story. That kind of gives you information about what might have happened. I'm not saying that's what the People proved. [Defendant] was convicted in 2001. But it lays out perhaps a motive of why he ran because the motive he gave was just bogus. So you're left with he's got a drunk guy in the car and he leaves. [¶] You also know that although it's been since 2003, a DUI, he has been in trouble and it's laid out in the probation report, and it hasn't been felony conduct but it has been somewhat violent conduct. He beat up a guy. He did certain things. He just hasn't learned."

The court's sentencing decision was based on substantial, reliable, accurate evidence. The situation presented in People v. Eckley (2004) 123 Cal.App.4th 1072, does not compare. There, the court relied upon inaccurate statements in documents submitted to it for the sentencing. (Id. at pp.1078-1080.) The appellate court concluded reliance upon the erroneous information rendered the sentencing fundamentally unfair, requiring a new sentencing hearing. (Id. at pp. 1080-1081.) "A court's reliance, in its sentencing and probation decisions, on factually erroneous sentencing reports or other incorrect or unreliable information can constitute a denial of due process." (Id. at p. 1080.)

The trial court did not believe defendant's excuse for fleeing the scene -- that he was "in shock" because the car he was driving was not his and he thought his brother "was going to kill" him for wrecking the car. The fact that the court referred to defendant's passenger's intoxication and that the passenger said they were coming from a bar when the collision occurred does not mean the court relied upon factually erroneous or other incorrect or unreliable information in finding defendant was within the spirit of the Three Strikes law.

D. Remand

Because the true findings on the Penal Code enhancements must be vacated, the matter is remanded to the trial court for resentencing. The trial court sentenced defendant using the sentence provided in section 20001, subdivision (b)(1). Subdivision (a) of section 20001, defines the crime of felony fleeing the scene of an injury accident. Subdivision (b)(2) of that section provides a sentencing triad of "two, three, or four years" in state prison when the accident resulted in death or permanent serious bodily injury. The penalty is "imprisonment in the state prison, or in a county jail for not more than one year" in all other cases. (§ 20001, subd. (b)(1).) The Attorney General argues that on remand the trial court must sentence defendant under subdivision (b)(2) of section 20001.

Defendant concedes the jury necessarily found beyond a reasonable doubt the "accident caused the death or permanent serious injury" of another, given it was instructed it could not find defendant guilty otherwise. He notes though that count one of the information did not allege the accident resulted in death or permanent serious bodily injury. That count alleged the "accident result[ed] in injury to Richard [Lauvao]" and did not refer to either of the sentencing provisions in section 20001. We do not understand defendant to claim he lacked notice that the accident resulted in death or permanent serious injury and that sentencing under section subdivision (b)(2) of section 20001 would violate his right to notice. Nor could he. In addition to fleeing the scene of the accident, the information also charged him with vehicular manslaughter in causing Lauvao's death. He was on notice the accident resulted in death.

We reject defendant's contention that subdivision (b)(1) is a lesser offense of subdivision (b)(2) of section 20001. These subdivisions provide alternative penalty schemes for a violation of section 20001, subdivision (a). As neither subdivision was alleged in the information, defendant could not have been misled into believing he could not be sentenced under subdivision (b)(2) of section 20001 if convicted.

His concern that sentencing under section 20001, subdivision (b)(2) could violate his right to due process by the imposition of a greater sentence than the one he successfully appealed (see People v. Hanson (2000) 23 Cal.4th 355, 366-367 [state constitutional double jeopardy and due process provisions preclude imposition of greater punishment after a successful appeal]) is unfounded. Defendant's exposure on remand, whether the court sentences him under subdivision (b)(1) or subdivision (b)(2) of section 20001 is less than his original sentence.



The true findings on the Penal Code section 12022.7, subdivision (a) great bodily injury enhancement and the Penal Code section 667, subdivision (a)(1) prior serious felony conviction enhancement are reversed, the sentences imposed on those enhancements vacated, and the matter is remanded for resentencing. In all other respects the judgment is affirmed.




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