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The People v. Kenny Minh Phan

December 7, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KENNY MINH PHAN, DEFENDANT AND APPELLANT.



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.

P.

v.

Phan CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

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).

I

FACTS

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 ...


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