192 Cal. App. 4th 1002
Cal. Ct. App.2011Background
- Defendant Phong Bui was convicted by jury of attempted murder, mayhem, and multiple counts of first degree residential robbery and burglary stemming from a November 2005 home invasion in Bay Point that injured the husband, Billy Huynh.
- During the robbery, Huynh was shot multiple times; Thu Le and Mike Le were involved as witnesses, and a firearm was used during the crime.
- Defendant admitted participation in the robbery in a detective interview, while Mike Le testified about prior marijuana thefts and the plan to steal money from the safe.
- The jury found attempted murder but not premediation on the willful-deliberate-premeditated element; firearm enhancements under section 12022.53 were found true for several counts.
- Sentencing totaled 16 years four months in the determinate portion, plus 75 years to life for 12022.53(d) enhancements; Palacios and § 654 issues later informed remand for resentencing.
- On appeal, defendant challenged the sufficiency of evidence for attempted murder, instructional/sentencing errors, and ineffective assistance of counsel; the court remanded for resentencing but affirmed in other respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a unanimity election was required for the shots | People argued no election required; continuous conduct. | Bui argued trial error for lack of elect/unanimity instruction. | Unanimity not required; continuous-transaction exception applies. |
| Palacios interpretation of 12022.53(d) enhancements and discretion | Palacios mandates consecutive 25-to-life enhancements for counts. | Court and counsel misunderstood Palacios; discretion to stay can apply. | Palacios does not require automatic consecutive enhancements; remand to determine proper sentencing under 654 and discretionary authority. |
| Whether the mayhem and robbery counts stemming from a single act require stay under §654 | Palacios analysis dictates enhancements be mandatory; no stay concerns. | Court should stay punishment for underlying indivisible acts. | Sentence for mayhem must be stayed under §654; remand to resolve count three accordingly. |
| Consecutive enhancements on counts 4 and 5 when underlying sentences run concurrently | Enhancements can run consecutively with concurrent underlying terms. | Cannot impose consecutive enhancements where the base terms are concurrent. | Imposition of consecutive §12022.53(b) enhancements on counts 4 and 5 was improper; remand for correction. |
Key Cases Cited
- People v. Palacios, 41 Cal.4th 720 (Cal. 2007) (12022.53 enhancements are not limited by 654; issues of multiple punishments differ from enhancements)
- People v. Oates, 32 Cal.4th 1048 (Cal. 2004) (enhancements follow from convictions, not separate offenses)
- Mustafaa, 22 Cal.App.4th 1305 (Cal. App. 1994) (cannot impose concurrent term for a conviction and a separate enhancement)
- People v. Perry, 154 Cal.App.4th 1521 (Cal. App. 2007) (divisible objectives govern multiple punishments under §654)
- People v. Jones, 157 Cal.App.4th 1373 (Cal. App. 2007) (remand appropriate where court misreads discretionary scope)
- People v. Crandell, 46 Cal.3d 833 (Cal. 1988) (continuous conduct exception to unanimity when acts are closely connected in time)
- People v. Russo, 25 Cal.4th 1124 (Cal. 2001) (unanimity required when multiple discrete crimes; continuous conduct exception applies)
- People v. Nguyen, 204 Cal.App.3d 181 (Cal. App. 1988) (gratuitous violence and indivisible acts influence §654 analysis)