Filed 8/20/14 P. v. Chhaim CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B252937

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA090976)
         v.

CHHANN CHHAIM,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Mark C.
Kim, Judge. Reversed and remanded with directions.


         Heather J. Manolakas, under appointment by the Court of Appeal, for Defendant
and Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and
Connie H. Kan, Deputy Attorneys General, for Plaintiff and Respondent.


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       A jury convicted appellant Chhan Chhaim of discharging a firearm with gross
negligence (Pen. Code, § 246.3, subd. (a))1 and possession of a firearm by a felon
(§ 29800, subd. (a)(1)).2 Appellant argues the court should have stayed his sentence for
firearm possession under section 654. He also argues the court erred in imposing two
enhancements. We agree regarding the enhancements and reverse and remand for the
limited purpose of resentencing.
                               STATEMENT OF FACTS
       On December 31, 2011, at approximately 11:30 p.m., Officers Jason Wood and
Henry Vong with the Long Beach Police Department were patrolling a high-crime area of
Long Beach. They were sitting in their patrol vehicle at a gas station when they heard a
gunshot. They drove toward the direction of the gunshot and saw a group of four males
in a parking lot. Three of the males were appellant and co-defendants Louis Songha and
Khasen Chhaim.3 Appellant was flailing his arms and seemed agitated. Songha was
holding appellant back like he was restraining appellant from a fight. Appellant appeared
to be heavily intoxicated. Officer Wood saw appellant grab at a bulge in his waistband
and posture “as if he had a weapon.” The officers exited their vehicle and drew their
weapons. Officer Wood directed appellant and the others to put their hands up. Songha
released appellant. Appellant lost his balance and fell onto his back on the sidewalk.
When he fell, Officer Wood heard a heavy metallic clink. He then saw a small, dark-


1      Further undesignated statutory references are to the Penal Code.

2      At the time appellant committed the offense, possession of a firearm by a felon
was codified in former section 12021, subdivision (a). Effective January 1, 2012, former
section 12021 was repealed and continued in section 29800 without substantive change.
(Cal. Law Revision Com. com., 51D pt. 4 West’s Ann. Pen. Code (2012 ed.) foll. §
29800, p. 193)

3       Because Khasen Chhaim shares a surname with appellant, we will refer to him by
his first name for the sake of clarity. Khasen is appellant’s brother, and Songha is
appellant’s cousin. Songha and Khasen are not parties to this appeal.



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colored firearm on the ground approximately a foot away from appellant. The officer
ordered everyone not to touch the firearm. Songha did not comply and picked up the
firearm. Officer Wood yelled “gun, gun, gun,” to alert Officer Vong, who was
approximately 10 yards north, that one of the men was armed. Songha turned away from
Officer Wood and ran. Khasen got up from his position on the ground and jumped in
between Officer Wood and Songha. Officer Wood then heard four to five gunshots from
the area 10 yards north. He called out to Officer Vong, and Officer Vong responded that
he was “okay.” Officer Vong had chased after Songha and, using the weapon light on his
pistol, saw that Songha had a gun pointed at him. Afraid Songha would shoot, Officer
Vong fired five times at Songha. Songha fell to the ground, bleeding and holding his
midsection. While this was going on between Songha and Officer Vong, Officer Wood
had Khasen at gunpoint and ordered him to get on the ground. Khasen laid down on top
of appellant.
       Officer Timothy Redshaw responded to the scene. Appellant was laying on the
ground on his stomach moving his arms around and would not remain still. Officer
Redshaw ordered him to stop moving his arms around, but appellant would not. Another
officer discharged two bean bags at appellant’s back when he refused to comply. The
officers handcuffed appellant and took him to the police station, after he had been
medically cleared at the hospital.
       At the station, appellant stated he had possessed a loaded firearm and had fired
approximately two rounds at or toward his home. Two detectives interviewed appellant
at approximately 4:20 a.m. on January 1, 2012. Appellant said he went into the backyard
of his house carrying a gun. Right before midnight, he shot the gun into the air once or
twice because it was the New Year holiday. Khasen and Songha tried to take him back
into the house and take the gun away. He got the gun from inside the house (where he
lived with his parents), underneath a sofa cushion in the living room. Appellant’s
brother, Tino Chhaim, testified there were no guns inside the house that he knew of
because it would be disrespectful to their parents to have one there.



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                                  PROCEDURAL HISTORY
       In addition to the counts for discharging a firearm with gross negligence and
possession of a firearm by a felon, the information alleged: as to both counts, appellant
had suffered five prior convictions within the meaning of the Three Strikes Law, four of
which were suffered in the same matter (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d));
as to the count for discharging a firearm, appellant had suffered five prior convictions of
a serious felony (§ 667, subd. (a)(1)); and as to the count for possession of a firearm,
appellant had served a prison term for four prior convictions in one case (§ 667.5, subd.
(b)). After the jury returned a guilty verdict, appellant admitted the special allegations.
The court granted appellant’s Romero4 motion to strike four prior convictions to make
this case a second-strike case.
       The court sentenced appellant to a total term of 28 years, four months in state
prison. The court imposed the upper term of three years for discharging a firearm with
gross negligence, which it then doubled pursuant to the Three Strikes Law. The sentence
on this count was enhanced by an additional ten years under section 667, subdivision
(a)(1), and an additional year under section 667.5, subdivision (b). For possession of a
firearm by a felon, the court imposed a consecutive term of 16 months in state prison,
which amounted to twice one-third the midterm. The sentence on this count was also
enhanced by an additional ten years under section 667, subdivision (a)(1). Appellant
filed a timely notice of appeal.
                                       DISCUSSION 
1. Section 654
       “An act or omission that is punishable in different ways by different provisions of
law shall be punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision.” (§ 654, subd. (a).) Pursuant to section 654, appellant contends we should


4      People v. Romero (1996) 13 Cal.4th 497.



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stay his sentence on count 4 for possession of a firearm by a felon. He argues the
conduct underlying this offense and the offense in count 3, grossly negligent discharge of
a firearm, constituted a single act. We disagree.
       “Section 654 prohibits punishment for two crimes arising from a single, indivisible
course of conduct. [Citation.] Thus, if all of the crimes were merely incidental to or
were the means of accomplishing or facilitating a single objective, the defendant may
receive only one punishment. [Citation.] ‘The defendant’s intent and objective are
factual questions for the trial court; [to permit multiple punishments,] there must be
evidence to support a finding the defendant formed a separate intent and objective for
each offense for which he was sentenced. [Citation.]’ [Citation.] When a trial court
sentences a defendant to separate terms without making an express finding the defendant
entertained separate objectives, the trial court is deemed to have made an implied finding
each offense had a separate objective. [Citation.]” (People v. Islas (2012) 210
Cal.App.4th 116, 129.)
       “‘A trial court’s implied finding that a defendant harbored a separate intent and
objective for each offense will be upheld on appeal if it is supported by substantial
evidence. [Citation]’” (People v. Islas, supra, 210 Cal. App.4th at p. 129.) We view the
evidence in the light most favorable to the sentencing order and presume the existence of
every fact the trial court could reasonably deduce from the evidence. (People v. Hutchins
(2001) 90 Cal.App.4th 1308, 1312-1313.) The forfeiture doctrine does not apply to
section 654 sentencing issues. Thus, we may correct errors in the applicability of section
654 on appeal regardless of whether the defendant raised an objection in the trial court.
(People v. Lopez (2004) 119 Cal.App.4th 132, 138.)
       In People v. Bradford (1976) 17 Cal.3d 8 (Bradford), our Supreme Court held that
imposition of consecutive sentences for firearm assault on a peace officer and illegal
possession of the firearm by a felon violated section 654. The court held that “‘where the
evidence shows a possession distinctly antecedent and separate from the primary offense,
punishment on both crimes has been approved. On the other hand, where the evidence
shows a possession only in conjunction with the primary offense, then punishment for the

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illegal possession of the firearm has been held to be improper where it is the lesser
offense.’” (Bradford, at p. 22, quoting People v. Venegas (1970) 10 Cal.App.3d 814,
821.)
        Here, the court did not err in imposing a consecutive sentence on count 4. There
was substantial evidence appellant’s possession of the firearm was antecedent and
separate from his grossly negligent discharge of the firearm. Even though appellant’s
brother thought there were no guns in the house because it would be disrespectful to their
parents, appellant said he retrieved the firearm from inside his house, where he knew it
was hidden under the cushions of the couch. He then took it outside and shot into the air.
The court could have reasonably inferred from this evidence that the gun belonged to
appellant or he possessed it prior to and separately from his act of discharging it into the
air. (People v. Jeffers (1996) 41 Cal.App.4th 917, 922 [offense requires ownership,
possession, custody, or control of a firearm]; People v. Ratcliff (1990) 223 Cal.App.3d
1401, 1410 [“Implicitly, the crime is committed the instant the felon in any way has a
firearm within his control” (italics omitted).].) In other words, he had multiple criminal
objectives in possessing the firearm and then discharging it in a grossly negligent manner.
This case is unlike Bradford, in which the defendant wrested a police officer’s gun away
from the officer and immediately shot at the officer with it. (Bradford, supra, 17 Cal.3d
at p. 13.) In such a case, unlike here, “fortuitous circumstances put the firearm in the
defendant’s hand only at the instant of committing another offense.” (People v. Ratcliff,
supra, 223 Cal.App.3d at p. 1412.) Appellant’s consecutive sentence on count 4 did not
violate the proscription against multiple punishment of a single act.
2. Section 667, Subdivision (a)(1) Enhancement
        Appellant contends the court erred in imposing a 10-year enhancement (consisting
of two 5-year terms) on count 4 under section 667, subdivision (a)(1). Respondent
concedes the error, and we agree as well.
        Section 667, subdivision (a)(1), provides “any person convicted of a serious felony
who previously has been convicted of a serious felony . . . shall receive, in addition to the
sentence imposed by the court for the present offense, a five-year enhancement for each

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such prior conviction on charges brought and tried separately.” The statute defines a
“serious felony” as “a serious felony listed in subdivision (c) of Section 1192.7.” (§ 667,
subd. (a)(4).) The offense in count 4, possession of a firearm by a felon, is not a serious
felony listed in section 1192.7, subdivision (c). This enhancement should not, therefore,
have been imposed on count 4. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1563.)
3. Section 667.5, Subdivision (b) Enhancement
       Appellant contends the court also erred in imposing a one-year enhancement on
count 3 under section 667.5, subdivision (b). Again, respondent concedes the error, and
we agree.
       The court enhanced appellant’s sentence in count 3 with a 10-year term, consisting
of two 5-year terms for two prior serious felony convictions under section 667, subd.
(a)(1). It used the prison term for one of those prior serious felony convictions to also
impose a one-year enhancement under section 667.5, subdivision (b). Our Supreme
Court has held courts cannot use a prior conviction and the prison term served for that
same conviction to impose enhancements under both sections 667, subdivision (a)(1) and
667.5, subdivision (b). (People v. Jones (1993) 5 Cal.4th 1142, 1153.) Accordingly, the
one-year enhancement under section 667.5, should not have been imposed. (People v.
Perez (2011) 195 Cal.App.4th 801, 805.)
4. Remand for Resentencing
       We cannot simply strike the unauthorized enhancements and order an amended
abstract of judgment. When correcting a sentencing error that may affect the trial court’s
discretionary sentencing decisions, the proper remedy is to reverse and remand for
resentencing to give the trial court an opportunity to restructure its sentencing choices.
(People v. Rodriguez (2009) 47 Cal.4th 501, 509; People v. Edwards (2011) 195
Cal.App.4th 1051, 1060.) Here, there is no doubt the trial court will want to restructure
its sentencing choices. At the sentencing hearing, the court stated: “Thus the total
aggregate term is 28 years and four months. It is the intent of this court that defendant
receive no less than 28 years and four months. If the court’s interpretation of 667(a)(1) is



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incorrect, then the court does reserve the right to impose sentence that matches that
amount or more.” The proper remedy is to remand.5
                                     DISPOSITION
       The judgment is reversed and the cause remanded for the limited purpose of
resentencing appellant in accordance with the views expressed in this opinion.




                                                 FLIER, J.
WE CONCUR:




       RUBIN, Acting P. J.




       GRIMES, J.




5      We note that upon remand, the court does not have the authority to increase
appellant’s punishment beyond the original sentence. (People v. Hanson (2000) 23
Cal.4th 355, 358-360.)



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