Filed 1/7/16 P. v. Phung CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G052035

         v.                                                            (Super. Ct. No. 11WF0963)

TIEN PHOUC PHUNG,                                                      OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, James A.
Stotler, Judge. Affirmed.
                   Anthony J. Dain, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   No appearance for Plaintiff and Respondent.


                                             *               *               *
               In a prior opinion (People v. Phung (July 21, 2014, G048108) [nonpub.
opn.] (Phung I)), we reversed defendant Tien Phouc Phung’s first degree murder
conviction pursuant to People v. Chiu (2014) 59 Cal.4th 155. Chiu held “that an aider
and abettor may not be convicted of first degree premeditated murder under the natural
and probable consequences doctrine[, but, r]ather, his or her liability for that crime must
be based on direct aiding and abetting principles.” (Id. at pp. 158-159.) Accordingly, in
Phung I, we held that “[t]he People shall have the option to accept a reduction of the
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conviction to second degree murder or to retry the greater offense.”
               Upon remand, the prosecution elected to accept a reduction of defendant’s
conviction to second degree murder. Defense counsel objected and moved to retry the
first degree murder charge. The court denied the motion pursuant to “the exact language”
of the remittitur in Phung I. The court resentenced defendant to a total prison term of 40
years to life, consisting of an indeterminate term of 15 years to life for his second degree
murder conviction plus a determinate term of 25 years for an associated firearm
               2
enhancement.
               Defendant appealed the judgment, and we appointed counsel to represent
him. Counsel did not argue against defendant, but advised the court he found no issues to
argue on defendant’s behalf. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was
given 30 days to file written argument on his own behalf, but he did not do so.


1
              In Phung I, supra, G048108 we also affirmed defendant’s convictions for
attempted murder, shooting at an occupied motor vehicle, and street terrorism, and
modified the judgment by striking all street terrorism enhancements.
2
               In the first trial, the court had sentenced defendant to a total prison term of
50 years to life, consisting of an indeterminate term of 25 years to life for murder and a
determinate term of 25 years for an associated firearm enhancement. Both the original
sentence and the resentence included concurrent terms for attempted murder and shooting
at an occupied motor vehicle and their associated enhancements, and imposed and stayed
(pursuant to § 654) a term for street terrorism.

                                              2
             We have examined the entire record but have not found an arguable issue.
(People v. Wende, supra, 25 Cal.3d 436.) The judgment is affirmed.




                                              IKOLA, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.




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