1

Filed 8/25/21 P. v. Thao CA3

NOT TO BE PUBLISHED

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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

TOU CHRISTMAS THAO,

Defendant and Appellant.

C091344 

(Super. Ct. No. 10F06846)

Defendant Tou Christmas Thao appeals the trial court’s denial of the California 

Department of Corrections and Rehabilitation’s Penal Code section 1170, subdivision 

(d)(1) (section 1170(d)) recommendation that his sentence be recalled, as it might be 

unauthorized. The trial court denied the recommendation, concluding the sentencing 

court had correctly sentenced defendant, but ordered the abstract of judgment corrected to 

reflect the sentence imposed. Defendant contends the original sentencing court did not 

properly impose sentence, so the matter must be remanded for resentencing.
2

We find no error. However, there is an error in the abstract of judgment that

requires correction. Accordingly, we will order the abstract corrected to reflect the 

judgment imposed and affirm the judgment.

FACTS AND HISTORY OF THE PROCEEDINGS

The substantive facts underlying the convictions are not relevant to the issue raised 

on appeal and are therefore not recounted here. In 2011, defendant pleaded no contest to 

assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(2) - statutory section 

references that follow are to the Penal Code.) Defendant also admitted the enhancement 

allegations that he personally used a firearm in connection with the crime (§ 12022.5, 

subd. (a)), committed the crime for the benefit of, at the direction of, or in association 

with a street gang (§ 186.22, subd. (b)(1)(C)), and personally inflicted great bodily injury 

upon the victim (§ 12022.7, subd. (a)). The sentencing court sentenced him, pursuant to a 

stipulated sentence, to two years on the underlying offense, plus three years for the 

firearm enhancement, plus 10 years for the gang enhancement, for a total of 15 years. 

Defense counsel reminded the court that defendant admitted the great bodily injury 

enhancement. The sentencing court then noted it had given, “no additional time as a 

result of that enhancement because that activity is used as part of the 186.22(b)(1) 

enhancement. So to avoid double counting, it’s zero time on the 1022.7 [sic] 

enhancement.” 

In 2018, the California Department of Corrections and Rehabilitation (CDCR) sent 

a letter to the trial court recommending the court recall the previously imposed sentence 

and resentence defendant pursuant to section 1170, subdivision (d)(1). CDCR indicated 

it appeared that defendant was excessively sentenced as the trial court imposed two 

enhancements attached to his assault with a deadly weapon offense. (Ibid.) CDCR stated 

that pursuant to People v. Rodriguez (2009) 47 Cal.4th 501, only the greater of the two 

enhancements should have been imposed. 
3

As the sentencing judge was no longer available, the matter was assigned to a 

different trial court judge for review. The trial court found the sentence imposed was 

correct, but that a, “clerical error in the abstract of judgment led to the CDCR’s 

determination the sentence may be erroneous.” After reviewing the record, the trial court 

found the sentencing court properly imposed and stayed the great bodily injury 

enhancement, as that enhancement had been used to support the 10-year gang 

enhancement. Because the imposition of the gang enhancement was based on the great 

bodily injury enhancement, not the firearm enhancement, the trial court found the 

sentencing court correctly imposed sentence on the firearm enhancement. However, the 

trial court found the great bodily injury enhancement had been inadvertently omitted 

from the abstract of judgment. 

The trial court then issued a corrected Felony Abstract of Judgment reflecting that 

sentence on the great bodily injury enhancement was imposed and stayed. The corrected 

abstract did not, however, state the length of the term imposed. 

DISCUSSION

On appeal, defendant argues that because no term was ever imposed on the 

enhancement, this matter should be remanded to the trial court to impose and then stay a 

term, or to strike the enhancement entirely. Without articulating in his briefing the basis 

of the claimed error or the standard of review, defendant claims the matter should be 

remanded to the trial court for resentencing. Defendant’s notice of appeal identifies the 

order appealed from as the order denying the CDCR section 1170(d)(1) recommendation. 

As defendant’s judgment is long since final, this is the only ground on which he could 

seek this relief on appeal. Accordingly, we construe defendant’s claim as a challenge to 

the denial of the CDCR section 1170(d)(1) recommendation and apply the standards of 

review relevant to that claim.
4

“We review the trial court’s decision whether to recall a defendant’s sentence for 

an abuse of discretion.” (People v. McCallum (2020) 55 Cal.App.5th 202, 211.) Using 

this standard, we consider whether the ruling, “exceeds the bounds of reason or is 

arbitrary, whimsical or capricious. [Citations.] This standard involves abundant 

deference to the trial court’s rulings.” (People v. Jackson (2005) 128 Cal.App.4th 1009, 

1018.) The trial court’s factual findings upon which it bases its discretionary 

determinations are subject to review under the substantial evidence standard. (See 

People v. Cluff (2001) 87 Cal.App.4th 991, 998 [court abuses discretion when factual 

findings critical to decision find no support in evidence].) Under the substantial evidence 

standard, we review the entire record in the light most favorable to the court’s factual 

findings to determine whether it discloses evidence that is reasonable, credible, and of 

solid value such that a reasonable trier of fact could make those factual findings by a 

preponderance of the evidence. (See People v. Bolin (1998) 18 Cal.4th 297, 331.) We 

“must assume every fact and inference in favor of the judgment.” (People v. Wise (1962) 

199 Cal.App.2d 57, 59.) “Absent evidence to the contrary, we presume that the trial 

court knew and applied the governing law.” (People v. Gutierrez (2014) 58 Cal.4th 1354, 

1390.)

We find the there is substantial evidence supporting the trial court’s finding that 

the sentencing court imposed and stayed the great bodily injury enhancement. The 

authorities cited as the basis for the CDCR recommendation, Rodriguez and section 1170, 

subdivision (g), had long been the law at the time defendant was sentenced. The 

sentencing court sentenced defendant to the stipulated term agreed to by defendant and 

counsel. There was no discussion of striking the enhancement. Rather, when prompted 

about the great bodily injury enhancement, the sentencing court recognized that it could 

not impose and execute sentences on both the great bodily injury enhancement as well as 

the gang enhancement. Thus, the sentencing court imposed the enhancement with “zero” 

time. On this record, it is reasonable to infer that the sentencing court and the parties 
5

were aware of Rodriquez and did not agree to, or impose, a sentence in violation of it. It 

is also reasonable to infer that the sentencing court’s statements specifically regarding the 

great bodily injury enhancement reflected the sentencing court imposing sentence on the 

enhancement and staying it, in accordance with the stipulated sentence. Accordingly, 

substantial evidence supports the trial court’s finding that sentence on the great bodily 

injury enhancement was properly imposed and stayed. The trial court also correctly 

noted that although the oral pronouncement of sentence had imposed and stayed the 

enhancement, the abstract of judgment did not reflect this sentence. Thus, the trial court 

ordered that clerical error be corrected. We agree with the trial court’s conclusion

concerning the clerical error, but note the corrected abstract of judgment does not reflect 

the length of the term imposed. Appellate courts have the inherent power to correct 

clerical errors in a judgment at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 

185.) “Rendition of the judgment is normally an oral pronouncement, and the abstract of 

judgment cannot add to, or modify, the judgment, but only purports to digest and 

summarize it.” (People v. Zackery (2007) 147 Cal.App.4th 380, 384.) “Where there is a 

discrepancy between the oral pronouncement of judgment and the minute order or the 

abstract of judgment, the oral pronouncement controls.” (Id. at p. 385.) We shall 

therefore direct the clerk to correct the abstract of judgment accordingly. 

DISPOSITION

The judgment is affirmed. The clerk of the court is directed to correct the abstract 

of judgment to reflect the three-year term imposed and stayed on the section 12022.7 
6

great bodily injury enhancement, and to forward a copy of the corrected abstract of 

judgment to the Department of Corrections and Rehabilitation. 

 

HULL, J.

We concur:

 

BLEASE, Acting P. J.

 

ROBIE, J.