People v. Phung
25 Cal. App. 5th 741
Cal. Ct. App. 5th2018Background
- In 2011, then-17-year-old Tom Phung rode with multiple Tiny Rascal Gang (TRG) members in a vehicle chase of a rival gang SUV; a TRG member two cars ahead fired five shots, killing one person and seriously wounding another.
- Phung was convicted as an aider and abettor of second-degree murder, attempted murder, shooting at an occupied motor vehicle, and street terrorism; jury found gang enhancements and vicarious firearm-discharge enhancements (Pen. Code § 12022.53) true for counts 1–3.
- Trial court sentenced Phung to an aggregate term of 40 years to life (15-to-life for murder + consecutive 25-to-life firearm enhancement), with other counts concurrent; judgment entered April 2015.
- While appeal was pending, Proposition 57 (2016) (requiring juvenile cases to start in juvenile court and transfer hearings for adult prosecution) and SB 620 (2018) (giving courts discretion to strike firearm enhancements) became law; courts later held these provisions retroactive under Estrada.
- Appellate court initially affirmed, then recalled remittitur after appellate counsel conceded ineffective assistance for failing to raise Proposition 57 retroactivity; court held both Proposition 57 and SB 620 apply retroactively and remanded for juvenile transfer hearing and resentencing.
Issues
| Issue | People’s Argument | Phung’s Argument | Held |
|---|---|---|---|
| Retroactivity of Proposition 57 (transfer requirement) | Proposition 57 does not require relief because defendant was properly tried as an adult when convicted | Proposition 57 reduces punishment/process and should apply retroactively under In re Estrada to require a transfer hearing | Applied retroactively; case conditionally reversed and remanded for juvenile transfer hearing (per Lara/Vela guidance) |
| Retroactivity of SB 620 (judicial discretion to strike firearm enhancements) | Initially imposed mandatory enhancements controlled at sentencing; People conceded Estrada retroactivity | Court should be able to exercise discretion to strike §12022.53 enhancements on remand | SB 620 applies retroactively; remand to permit trial court (or juvenile court after transfer determination) to consider striking enhancements |
| Eighth Amendment challenge to 40‑year‑to‑life sentence for juvenile aider-and‑abettor | Sentence permissible because post‑conviction statutes (Penal Code §§3051, 4801) and parole mechanism provide meaningful opportunity for release | 40‑to‑life (including 25‑to‑life enhancement) is excessive under Miller/Graham principles; sentencing court must give individualized youth‑based mitigation | Rejected: Franklin and statutory parole scheme (§3051, §4801) supply meaningful opportunity for release; trial court considered youth factors; no Eighth Amendment violation upheld |
| Section 654 (double punishment for same course of conduct) re concurrent sentence for shooting at occupied vehicle | Multiple shots and separate risks justify separate objectives and punishment | Phung argued his passivity/single course of conduct should bar punishment on count 3 | Rejected: each shot constituted separate volitional acts/objectives; concurrent punishment for count 3 upheld |
Key Cases Cited
- In re Estrada, 63 Cal.2d 740 (Cal. 1965) (statute reducing punishment applies retroactively when judgment not final)
- People v. Lara, 4 Cal.5th 299 (Cal. 2018) (Proposition 57 retroactivity; requiring juvenile transfer hearing procedure)
- People v. Vela, 21 Cal.App.5th 1099 (Cal. Ct. App. 2018) (instructions for remand and juvenile transfer hearing after retroactivity determination)
- Miller v. Alabama, 567 U.S. 460 (U.S. 2012) (mandatory LWOP for juveniles unconstitutional; youth‑based mitigation required)
- Graham v. Florida, 560 U.S. 48 (U.S. 2010) (LWOP for nonhomicide juvenile offenders unconstitutional; need meaningful opportunity for release)
- Montgomery v. Louisiana, 136 S. Ct. 718 (U.S. 2016) (Miller announced substantive retroactive rule on collateral review)
- People v. Franklin, 63 Cal.4th 261 (Cal. 2016) (legislative parole mechanisms render some Miller claims moot; §3051/§4801 provide meaningful opportunity for release)
- People v. Caballero, 55 Cal.4th 262 (Cal. 2012) (de facto LWOP for juvenile nonhomicide offenders violates Eighth Amendment; urged parole eligibility mechanism)