People v. Dinh Van Nguyen

226 Cal. Rptr. 3d 615, 18 Cal. App. 5th 260
CourtCalifornia Court of Appeal, 5th District
DecidedDecember 11, 2017
DocketE066293
StatusPublished
Cited by34 cases

This text of 226 Cal. Rptr. 3d 615 (People v. Dinh Van Nguyen) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Dinh Van Nguyen, 226 Cal. Rptr. 3d 615, 18 Cal. App. 5th 260 (Cal. Ct. App. 2017).

Opinion

RAMIREZ, P. J.

*262Defendant Dinh Van Nguyen has a prior first degree burglary conviction which qualifies as:

1. A "strike" prior ( Pen. Code, §§ 667, subds. (b) - (i), 1170.12 );

2. A one-year prior prison term enhancement ( Pen. Code, § 667.5, subd. (b) ); and

3. A five-year prior serious felony conviction enhancement ( Pen. Code, § 667, subd. (a) ).

The information in this case contained one paragraph alleging the fact of the prior and citing the statute that defines a strike. It also contained a second paragraph realleging the fact of the prior and citing the statute that defines a prior prison term enhancement. However, it never specifically alleged-either in so many words or by citing the relevant statute-a prior serious felony conviction enhancement.

Defendant admitted the fact of the prior; he did not expressly admit its legal effect. Then, at sentencing, the trial court used the prior as a strike and as a prior serious felony conviction enhancement. Defense counsel did not object.

*263The trial court erred by imposing the prior serious felony conviction enhancement. Under Penal Code section 1170.1, subdivision (e), an enhancement must "be alleged in the accusatory pleading ...." As construed by the Supreme Court, this requirement cannot be satisfied merely by alleging the facts underlying an enhancement as the basis for a substantive offense or for a different enhancement. Moreover, a violation of this requirement results in an unauthorized sentence, and therefore defense counsel did not forfeit the error.

I

PROCEDURAL BACKGROUND

A. Case No. RIF1301321: Contracting-Related Crimes .

In case No. RIF1301321 (contracting case), after a jury trial, defendant was found guilty of first degree burglary ( Pen. Code, §§ 459, 460, subd. (a) ), grand theft ( Pen. Code, § 487, subd. (a) ), diversion of construction funds ( Pen. Code, § 484b ), fraudulent use of a contractor's license number ( Bus. & Prof. Code, § 7027.3 ), contracting without a license ( Bus. & Prof. Code, § 7028, subd. (a) ), and charging an excessive down payment ( Bus. & Prof. Code, § 7159.5, subd. (a)(3) ).

*617After waiving a jury, defendant admitted one prior serious and violent felony conviction. As will be seen, the effect of this admission is disputed. He was sentenced to a total of 17 years in prison.

B. Case No. RIF1301886: Criminal Threat .

II

THE INFORMATION DID NOT ADEQUATELY ALLEGE A PRIOR SERIOUS FELONY CONVICTION ENHANCEMENT

Defendant contends that the trial court erred by imposing a prior serious felony conviction enhancement ( Pen. Code, § 667, subd. (a) ), because this particular enhancement had not been either alleged or admitted.

*264A. Additional Factual and Procedural Background .

The information in the contracting case contained two prior conviction allegations.

First, it alleged that on June 9, 2004, defendant was convicted of first degree burglary, and that he had served a prior prison term for this offense, "within the meaning of Penal Code section 667.5, subdivision (b)."

Second, it alleged that on June 9, 2004, defendant was convicted of first degree burglary, "a serious and violent felony ... within the meaning of Penal Code sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1)."

After a jury found defendant guilty, he agreed to admit the priors. In response to the prosecutor's questioning, he admitted that: (1) he had a 2004 conviction for first degree burglary; (2) first degree burglary was a serious felony; and (3) he had been sentenced to six years for this and other crimes.

During the admission colloquy, the prosecutor repeatedly represented to the trial court that what defendant was admitting was a "nickel prior" "under Penal Code section 667(a)." Defense counsel did not disagree or object.

At sentencing, the trial court doubled the term on each felony count pursuant to the three strikes law. This discussion ensued:

"[THE COURT:] As to the 667.5(b), the prison prior, the defendant is sentenced to one year in state prison.
"[THE PROSECUTOR]: I do apologize. I think there's a typo on the [i]nformation. It's a nickel prior under 667(a), because the strike is a serious offense, and the current offense is a serious offense.
"THE COURT: It's five?
"[THE PROSECUTOR]: It's a nick[el] prior.
"THE COURT: There was a typo in what I received.
"[THE PROSECUTOR]: I apologize.
"THE COURT: For the 667.5(a) [sic ], referred to as the nick[el] prior, the defendant is sentenced to five years in state prison ...."

*265Once again, defense counsel did not object.

B. Merits .

Penal Code section 1170.1, subdivision (e) provides that: "All enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact."

*618People v. Mancebo (2002) 27 Cal.4th 735, 117 Cal.Rptr.2d 550, 41 P.3d 556, although not precisely on point, is the most relevant Supreme Court case. There, the defendant was charged with forcible sex offenses against each of two victims. It was further alleged that he was subject to sentencing under the "One Strike" law based on, among other things, the use of a firearm. ( Pen. Code, § 667.61, former subd. (e)(4); see now id ., subd. (e)(3).) Finally, it was alleged that, in the commission of the sexual offenses, he personally used a firearm. ( Pen. Code, § 12022.5, subd. (a).) ( Mancebo , supra , at p. 740, 117 Cal.Rptr.2d 550, 41 P.3d 556 ; see also id . at pp. 742-743, 117 Cal.Rptr.2d 550, 41 P.3d 556

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Bluebook (online)
226 Cal. Rptr. 3d 615, 18 Cal. App. 5th 260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dinh-van-nguyen-calctapp5d-2017.