Filed 4/24/25 P. v. Van CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E084948
v. (Super.Ct.No. RIF101294)
TOAN QUOC VAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Gail A. O’Rane, Judge.
Affirmed.
Toan Quoc Van, in pro. per.; and Richard Schwartzberg, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Toan Quoc Van filed a motion for resentencing pursuant
to Senate Bill No. 1393 and Penal Code sections 1170.1261 and 1170.18, in which he
1 All further statutory references are to the Penal Code.
1 requested the court strike or dismiss his prior strike convictions. The court denied the
motion pursuant to section 1172.1, subdivision (c).2
On appeal, counsel has filed a brief under the authority of People v. Delgadillo
(2022) 14 Cal.5th 216 (Delgadillo), setting forth a statement of the case, requesting that
we exercise our discretion to independently review the record for error, and raising one
potentially arguable issue: whether the court erred in denying defendant’s petition
pursuant to section 1172.1, subdivision (c).
We offered defendant the opportunity to file a personal supplemental brief, which
he has done.3 Defendant raises several challenges to his conviction. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On February 4, 2005, a jury convicted defendant and appellant, Toan Quoc Van,
of conspiracy to commit residential robbery (§§ 182, subd. (a)(1), 213, subd. (a)(1)(A),
count 1); conspiracy to commit attempted residential robbery (§§ 211, 213,
subd. (a)(1)(A), 664, count 2); attempted residential burglary (§§ 459, 664, count 3);
attempted, premeditated murder of a police officer (§§ 187, subd. (a), 664, subd. (e),
count 4); possession of a firearm by a felon (§ 12021, subd. (a)(1), count 6), and resisting
an officer by force or violence (§ 69, count 8). (People v. Van (July 23, 2007, E037955)
2 The court filed the motion as a “letter from defendant” and ruled on the motion as “correspondence from” defendant.
3 “If the defendant . . . files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion.” (Delgadillo, supra, 14 Cal.5th at p. 232.)
2 [nonpub. opn.] (Van I); People v. Van. (Dec. 23, 2009, E048243) [nonpub. opn.] (Van
II).)
The jury also found true allegations that defendant committed the crimes in counts
1 through 4 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), that a
principal was armed in counts 1 through 3 (§ 12022, subd. (a)(1)), that a principal used a
firearm and inflicted great bodily injury with respect to the attempted murder of a police
officer (§ 12022.53, subds. (d) & (e)(1)), and that defendant used a firearm when he
resisted an officer by force or violence in count 8 (§ 12022.5, subd. (a)). Two prior strike
allegations (§§ 667, subds. (c) & (e), 1192.7, subd. (c)(8)), two prior prison term
allegations (§ 667.5, subd. (b)), and a prior serious felony conviction allegation (§ 667,
subd. (a)) were additionally found true. The court sentenced defendant to 140 years to
life plus 17 years. (Van I, supra, E037955.)
Defendant appealed. On appeal, defendant contended the trial court erred in
refusing to disclose complaints made against two police officers; that the 10-year gang
enhancement attached to the attempted murder of a police officer offense should be
stricken, rather than stayed; that there was insufficient evidence to show that defendant’s
attempted murder of a police officer was committed as part of a gang; that insufficient
evidence supported all the gang enhancements; that insufficient evidence supported the
finding that defendant harbored a premeditated intent to kill when he shot at the officer;
and that the trial court erred in not instructing the jury on voluntary manslaughter. (Van
I, supra, E037955.)
3 This court conditionally reversed the judgment and remanded the matter to the
trial court with directions to hold a new hearing to determine if there were discoverable
records of complaints made against two officers. This court additionally modified the
judgment by striking the determinate 10-year gang enhancement imposed on count 4
(attempted murder), struck the 15-year gang enhancement imposed on count 2
(conspiracy to commit attempted residential robbery), and directed the trial court to
resentence defendant as necessary. (Van I, supra, E037955; Van II, supra, E048243.)
On remand, the trial court found no discoverable records. The court resentenced
defendant to 140 years to life, plus seven years.4 (Van II, supra, E048243.)
Defendant appealed. This court affirmed the judgment. (Van II, supra, E048243.)
On October 4, 2024, defendant filed a motion for resentencing pursuant to Senate
Bill No. 1393 and sections 1170.126 and 1170.18. The court denied the request pursuant
to section 1172.1, subdivision (c).
II. DISCUSSION
Defendant raises a number of issues pertaining to the admissibility and sufficiency
of the evidence admitted against him at trial: “the Judgement is erron[e]ous as a matter
of law and is based on a jury verdict tainted by speculative opinions, an invalid theory of
conviction, misinformation and improperly withheld evidence[] from defense.”
Defendant complains about the court’s jury instructions.
4 On December 1, 2023, the court struck the prior prison terms and resentenced defendant to 140 years to life plus 5 years.
4 However, none of the statutory bases raised by defendant in his motion afford him
“a new opportunity to raise claims of trial error or attack the sufficiency of the evidence
supporting the jury’s findings.” (See People v. Farfan (2021) 71 Cal.App.5th 942, 947;
accord People v. Burns (2023) 95 Cal.App.5th 862, 865 [“Section 1172.6 does not create
a right to a second appeal, and [defendant] cannot use it to resurrect a claim that should
have been raised in his [earlier] direct appeal.”].) This is particularly true where, as here,
defendant challenged the admissibility and sufficiency of the evidence adduced against
him at trial in his appeals from the judgment. This court rejected those challenges more
than 15 years ago. (Van I, supra, E037955; Van II, supra, E048243.)
With respect to the court’s ruling on defendant’s motion, the court erred in
denying defendant’s motion pursuant to section 1172.1, subdivision (c), which provides
that a court considering a motion brought by a defendant under its auspices is not
required to respond. However, defendant did not bring his motion pursuant to section
1172.1. Defendant brought his motion pursuant to Senate Bill No. 1393 and sections
1170.126 and 1170.18.
Nonetheless, “‘“we will affirm a judgment correct on any legal basis, even if that
basis was not invoked by the trial court.
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Filed 4/24/25 P. v. Van CA4/2
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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E084948
v. (Super.Ct.No. RIF101294)
TOAN QUOC VAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Gail A. O’Rane, Judge.
Affirmed.
Toan Quoc Van, in pro. per.; and Richard Schwartzberg, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Toan Quoc Van filed a motion for resentencing pursuant
to Senate Bill No. 1393 and Penal Code sections 1170.1261 and 1170.18, in which he
1 All further statutory references are to the Penal Code.
1 requested the court strike or dismiss his prior strike convictions. The court denied the
motion pursuant to section 1172.1, subdivision (c).2
On appeal, counsel has filed a brief under the authority of People v. Delgadillo
(2022) 14 Cal.5th 216 (Delgadillo), setting forth a statement of the case, requesting that
we exercise our discretion to independently review the record for error, and raising one
potentially arguable issue: whether the court erred in denying defendant’s petition
pursuant to section 1172.1, subdivision (c).
We offered defendant the opportunity to file a personal supplemental brief, which
he has done.3 Defendant raises several challenges to his conviction. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On February 4, 2005, a jury convicted defendant and appellant, Toan Quoc Van,
of conspiracy to commit residential robbery (§§ 182, subd. (a)(1), 213, subd. (a)(1)(A),
count 1); conspiracy to commit attempted residential robbery (§§ 211, 213,
subd. (a)(1)(A), 664, count 2); attempted residential burglary (§§ 459, 664, count 3);
attempted, premeditated murder of a police officer (§§ 187, subd. (a), 664, subd. (e),
count 4); possession of a firearm by a felon (§ 12021, subd. (a)(1), count 6), and resisting
an officer by force or violence (§ 69, count 8). (People v. Van (July 23, 2007, E037955)
2 The court filed the motion as a “letter from defendant” and ruled on the motion as “correspondence from” defendant.
3 “If the defendant . . . files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion.” (Delgadillo, supra, 14 Cal.5th at p. 232.)
2 [nonpub. opn.] (Van I); People v. Van. (Dec. 23, 2009, E048243) [nonpub. opn.] (Van
II).)
The jury also found true allegations that defendant committed the crimes in counts
1 through 4 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), that a
principal was armed in counts 1 through 3 (§ 12022, subd. (a)(1)), that a principal used a
firearm and inflicted great bodily injury with respect to the attempted murder of a police
officer (§ 12022.53, subds. (d) & (e)(1)), and that defendant used a firearm when he
resisted an officer by force or violence in count 8 (§ 12022.5, subd. (a)). Two prior strike
allegations (§§ 667, subds. (c) & (e), 1192.7, subd. (c)(8)), two prior prison term
allegations (§ 667.5, subd. (b)), and a prior serious felony conviction allegation (§ 667,
subd. (a)) were additionally found true. The court sentenced defendant to 140 years to
life plus 17 years. (Van I, supra, E037955.)
Defendant appealed. On appeal, defendant contended the trial court erred in
refusing to disclose complaints made against two police officers; that the 10-year gang
enhancement attached to the attempted murder of a police officer offense should be
stricken, rather than stayed; that there was insufficient evidence to show that defendant’s
attempted murder of a police officer was committed as part of a gang; that insufficient
evidence supported all the gang enhancements; that insufficient evidence supported the
finding that defendant harbored a premeditated intent to kill when he shot at the officer;
and that the trial court erred in not instructing the jury on voluntary manslaughter. (Van
I, supra, E037955.)
3 This court conditionally reversed the judgment and remanded the matter to the
trial court with directions to hold a new hearing to determine if there were discoverable
records of complaints made against two officers. This court additionally modified the
judgment by striking the determinate 10-year gang enhancement imposed on count 4
(attempted murder), struck the 15-year gang enhancement imposed on count 2
(conspiracy to commit attempted residential robbery), and directed the trial court to
resentence defendant as necessary. (Van I, supra, E037955; Van II, supra, E048243.)
On remand, the trial court found no discoverable records. The court resentenced
defendant to 140 years to life, plus seven years.4 (Van II, supra, E048243.)
Defendant appealed. This court affirmed the judgment. (Van II, supra, E048243.)
On October 4, 2024, defendant filed a motion for resentencing pursuant to Senate
Bill No. 1393 and sections 1170.126 and 1170.18. The court denied the request pursuant
to section 1172.1, subdivision (c).
II. DISCUSSION
Defendant raises a number of issues pertaining to the admissibility and sufficiency
of the evidence admitted against him at trial: “the Judgement is erron[e]ous as a matter
of law and is based on a jury verdict tainted by speculative opinions, an invalid theory of
conviction, misinformation and improperly withheld evidence[] from defense.”
Defendant complains about the court’s jury instructions.
4 On December 1, 2023, the court struck the prior prison terms and resentenced defendant to 140 years to life plus 5 years.
4 However, none of the statutory bases raised by defendant in his motion afford him
“a new opportunity to raise claims of trial error or attack the sufficiency of the evidence
supporting the jury’s findings.” (See People v. Farfan (2021) 71 Cal.App.5th 942, 947;
accord People v. Burns (2023) 95 Cal.App.5th 862, 865 [“Section 1172.6 does not create
a right to a second appeal, and [defendant] cannot use it to resurrect a claim that should
have been raised in his [earlier] direct appeal.”].) This is particularly true where, as here,
defendant challenged the admissibility and sufficiency of the evidence adduced against
him at trial in his appeals from the judgment. This court rejected those challenges more
than 15 years ago. (Van I, supra, E037955; Van II, supra, E048243.)
With respect to the court’s ruling on defendant’s motion, the court erred in
denying defendant’s motion pursuant to section 1172.1, subdivision (c), which provides
that a court considering a motion brought by a defendant under its auspices is not
required to respond. However, defendant did not bring his motion pursuant to section
1172.1. Defendant brought his motion pursuant to Senate Bill No. 1393 and sections
1170.126 and 1170.18.
Nonetheless, “‘“we will affirm a judgment correct on any legal basis, even if that
basis was not invoked by the trial court. [Citation.] There can be no prejudicial error
from erroneous logic or reasoning if the decision itself is correct.”’” (Anderson v.
Davidson (2019) 32 Cal.App.5th 136, 144.)
“Senate Bill [No.] 1393 amend[ed] sections 667[, subdivision] (a) and 1385,
subdivision (b) . . . effective January 1, 2019, to give courts discretion to dismiss or strike
a prior serious felony conviction for sentencing purposes.” (People v. Garcia (2018) 28
5 Cal.App.5th 961, 965.) “[T]he Legislature intended Senate Bill [No.] 1393 to apply to all
cases to which it could constitutionally be applied, that is, to all cases not yet final when
Senate Bill [No.] 1393 [became] effective on January 1, 2019. [Citations.]” (Id. at
p. 973.)
“On November 6, 2012, the voters approved Proposition 36, the Three Strikes
Reform Act of 2012, which amended sections 667 and 1170.12 and added section
1170.126 (hereafter the Act). The Act changes the requirements for sentencing a third
strike offender to an indeterminate term of 25 years to life imprisonment. Under the
original version of the three strikes law a recidivist with two or more prior strikes who is
convicted of any new felony is subject to an indeterminate life sentence. The Act diluted
the three strikes law by reserving the life sentence for cases where the current crime is a
serious or violent felony or the prosecution has pled and proved an enumerated
disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike
offender. (§§ 667, 1170.12.)” (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-
168.)
“Proposition 47, . . . , enacted in 2014, reduced certain offenses that could be
charged as either felonies or misdemeanors to misdemeanors. And, in newly enacted
Penal Code section 1170.18, former subdivision (a), the Proposition authorized persons
‘currently serving a sentence’ for a felony conviction for such crimes to petition for
resentencing.” (People v. Bastidas (2017) 7 Cal.App.5th 591, 593, fn. omitted.)
Defendant is not entitled to relief pursuant to Senate Bill No. 1393 because
defendant’s judgment was long since final prior to its enactment in 2019. Defendant is
6 not entitled to relief pursuant to section 1170.126 because the offenses for which the trial
court sentenced defendant to life imprisonment were all qualifying serious or violent
felonies. (§§ 667, 1192.7, subds. (c)(19) [robbery], (c)(9) [attempted murder], (c)(8)
[“any felony in which the defendant personally uses a firearm”], (c)(40) [“any violation
of Section 12022.53”], 667.5, subds. (c)(9) [robbery], (c)(22) [“Any violation of Section
12022.53.”].) Finally, defendant is not entitled to reduction of any of his offenses to
misdemeanors pursuant to section 1170.18 because none of his offenses qualify.
(§ 1170.18, subd. (a).) Thus, regardless of whether the court erred in its basis for the
denial, the denial was legally correct.
III. DISPOSITION
The order denying defendant’s motion is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J.
We concur:
RAMIREZ P. J.
MILLER J.