People v. Tan ( 2021 )

Filed 8/19/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B308687
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA131282
v.
TAK SUN TAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Stephen A. Marcus, Judge. Affirmed as modified
with directions.
Brian C. McComas, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Idan Ivri, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 1998, defendant Tak Sun Tan was convicted of robbery
and first degree murder. In 2020, the trial court vacated Tan’s
murder conviction under Penal Code1 section 1170.95,
resentenced him on the robbery count, and ordered him released
on time served. The court also imposed a three-year parole term.
On appeal, Tan contends section 3000.01, which was enacted
before he was resentenced in this case, limits his parole term to
two years. The People concede the point, and, as a matter of first
impression, we agree. We therefore modify Tan’s sentence to
reflect a two-year parole term and affirm as modified.
BACKGROUND2
In 1998, Tan was convicted of one count of first degree
murder (§ 187; count 1) and one count of robbery (§ 211; count 2).
The jury found firearm allegations (§ 12022, subd. (a)(1)) true for
both counts. Tan admitted a prior conviction that had been
alleged as both a strike prior (§§ 1170.12, subds. (a)–(d), 667,
subds. (b)–(i)) and a serious-felony prior (§ 667, subd. (a)). The
court sentenced him to an aggregate indeterminate term of
56 years to life for count 1 and stayed count 2 under section 654.
On January 1, 2019, Senate Bill No. 1437 (Stats. 2018,
ch. 1015), changed sections 188 and 189 governing accomplice
liability for felony murder and murder under the natural and
probable consequences doctrine. As part of the bill, the
1 All undesignated statutory references are to the Penal Code.
2Because the underlying facts of this case are not relevant to the
appeal, we do not address them.
2
Legislature enacted section 1170.95, which allows defendants
who could not be convicted of murder under the amended law to
petition to vacate their murder convictions and be resentenced on
any remaining counts. (§ 1170.95, subds. (a), (b), (d)(1), (3).) The
statute also provides: “A person who is resentenced pursuant to
this section shall be given credit for time served. The judge may
order the petitioner to be subject to parole supervision for up to
three years following the completion of the sentence.” (Id.,
subd. (g).)
On May 31, 2019, Tan filed a petition for resentencing
under section 1170.95, and the court appointed counsel to
represent him. After briefing from both parties, the court issued
an order to show cause under section 1170.95, subdivision (c),
then held an evidentiary hearing under subdivision (d)(3). After
the hearing, the court held that no reasonable jury could convict
Tan of murder under current law and granted the petition.
The court vacated Tan’s murder conviction, imposed an
aggregate determinate term of 16 years for the robbery
conviction—the high term of five years for count 2, doubled for
the prior strike, plus one year for the firearm enhancement and
five years for the serious-felony prior—and ordered him released
on time served. The court also placed Tan on parole supervision
for three years.
Tan filed a timely notice of appeal.
DISCUSSION
Tan contends that under section 3000.01, his maximum
parole term is two years, and as such, the three-year parole term
imposed in this case is unauthorized. The People properly
concede the point, and we agree.
3
1. Legal Principles and Standard of Review
We may correct an unauthorized sentence on appeal
despite failure to object below. (People v. Scott (1994) 9 Cal.4th
331, 354.) A sentence is unauthorized if “it could not lawfully be
imposed under any circumstance in the particular case.” (Ibid.)
The meaning of and intersection between the parole
provisions in sections 1170.95 and 3000.01 are “questions of
statutory interpretation that we must consider de novo.”
(People v. Prunty (2015) 62 Cal.4th 59, 71.) As with any case
involving statutory interpretation, our primary goal is to
ascertain and effectuate the lawmakers’ intent. (People v. Park
(2013) 56 Cal.4th 782, 796.) To determine intent, we “examine
the ordinary meaning of the statutory language, the text of
related provisions, and the overarching structure of the statutory
scheme.” (Weatherford v. City of San Rafael (2017) 2 Cal.5th
1241, 1246.) If the statutory language is unambiguous, its plain
meaning controls, and “ ‘there is no need for further
construction.’ ” (People v. Gonzales (2017) 2 Cal.5th 858, 868.)
If the statutory language is ambiguous, “ ‘ “we may resort
to extrinsic sources, including the ostensible objects to be
achieved and the legislative history.” [Citation.] Ultimately we
choose the construction that comports most closely with the
apparent intent of the lawmakers, with a view to promoting
rather than defeating the general purpose of the statute.
[Citations.]’ ” (Mays v. City of Los Angeles (2008) 43 Cal.4th 313,
321.)
2. Section 3000.01 is unambiguous.
Section 1170.95, subdivision (g), provides: “A person who is
resentenced pursuant to this section shall be given credit for time
4
served. The judge may order the petitioner to be subject to parole
supervision for up to three years following the completion of the
sentence.” (Italics added.) Section 3000, in turn, governs the
length of parole periods for defendants convicted of various
crimes and includes many parole periods that exceed three years.
But in 2020, the Legislature enacted a new parole statute that
applies “notwithstanding any other law” to “persons released
from state prison on or after July 1, 2020 … .” (§ 3000.01,
subds. (b) & (a).)
Under section 3000.01, “[a]ny inmate sentenced to a
determinate term shall be released on parole for a period of two
years.” (§ 3000.01, subd. (b)(1).) And “[a]ny inmate sentenced to a
life term shall be released on parole for a period of three years.”
(Id., subd. (b)(2).) The statute specifically exempts sex offenders
and inmates whose offenses carried shorter parole terms when
their offenses were committed. (Id., subd. (d).) It does not exempt
inmates granted relief under section 1170.95.3
Here, Tan was sentenced to a 16-year determinate term on
August 17, 2020, after section 3000.01’s effective date. (Stats.
2020, ch. 29 [filed with Secretary of State Aug. 6, 2020]; id., § 44
[budget legislation to take effect immediately].) Because he was
released from prison after July 1, 2020, and is not excluded by
subdivision (d), under the plain language of section 3000.01,
Tan’s maximum parole term is two years.
3Presumably, had the Legislature wished to exempt such inmates, it
would have done so by adding them to the list of exempt inmates in
subdivision (d).
5
3. Section 3000.01 does not conflict with section 1170.95.
To be sure, the parole provision in section 1170.95,
subdivision (g)—that a court, upon resentencing a petitioner
under the statute, “may order the petitioner to be subject to
parole supervision for up to three years following the completion
of the sentence”—could be read to conflict with section 3000.01 by
giving courts discretion to impose up to three years of parole in
any case.
But our role is to harmonize the law where possible—and
the two statutes may also be read harmoniously. (People v.
Pieters (1991) 52 Cal.3d 894, 899.) Under a harmonious reading,
although the court may not impose more than three years of
parole on any offender granted relief under section 1170.95, that
maximum period may be shortened by other laws.
Section 3000.01, enacted the following year, is such a law. It
imposed limits on which parolees may be subject to the maximum
three-year term (those resentenced to life in prison) and which
may only receive a two-year term (those resentenced to
determinate terms).4
We acknowledge that two cases have taken a more
expansive view of section 1170.95’s parole provision: People v.
Wilson (2020) 53 Cal.App.5th 42 and People v. Lamoureux (2020)
57 Cal.App.5th 136. The issue in those cases was whether a
petitioner’s excess custody credits could be used to reduce his
parole term in section 1170.95 cases. (Wilson, at p. 46;
Lamoureux, at p. 145.) Neither case considered section 3000.01,
4As the People note, not all petitioners afforded section 1170.95 relief
will be sentenced to determinate terms; some, for example, may be
sentenced to indeterminate terms under the Three Strikes law.
6
however, and the People concede that they do not apply here.
(See People v. Escarcega (2019) 32 Cal.App.5th 362, 378
[“opinions are not authority for propositions not considered
therein”].) As such, we do not address them.
We do note one important difference, however: Wilson and
Lamoureux were construing section 1170.95 alongside the
general rule that extra custody credit must be applied against a
released inmate’s parole term—a rule that predates
section 1170.95 and had previously been addressed in the context
of Proposition 47. (See People v. Morales (2016) 63 Cal.4th 399.)
The statute we interpret in this case, however, was enacted after
section 1170.95 and specifically states that it applies
“notwithstanding any other law … .” (§ 3000.01, subd. (b); see
In re Greg F. (2012) 55 Cal.4th 393, 406 [“When the Legislature
intends for a statute to prevail over all contrary law, it typically
signals this intent by using phrases like “ ‘notwithstanding any
other law’ ”]; Arias v. Superior Court (2009) 46 Cal.4th 969, 983
[“The statutory phrase ‘ “notwithstanding any other provision of
law” ’ has been called ‘a “ ‘term of art’ ” [citation] that declares the
legislative intent to override all contrary law’ ”].) We presume
that the Legislature, when drafting this language, knew that it
had enacted section 1170.95 the year before and intended to
maintain a consistent body of rules. (See People v. Frahs (2020)
9 Cal.5th 618, 634.)
7
DISPOSITION
The judgment is modified to reduce Tan’s period of parole
supervision to two years. As modified, we affirm. Upon remand,
the court is directed to amend the minute order of August 17,
2020, and the abstract of judgment to reflect the judgment as
modified and to send a certified copy of the abstract of judgment
to the Department of Corrections and Rehabilitation.
CERTIFIED FOR PUBLICATION
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
HILL, J.*
* Judge of the Santa Barbara Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
8