Filed 9/8/23 P. v. Vuong CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

HUNG SI VUONG,

Defendant and Appellant.

B319891

Los Angeles County

Super. Ct. No. KA110002

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Juan Carlos Dominguez, Judge. Sentence 

vacated; remanded.

William G. Holzer, 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, William H. Shin and Lindsay Boyd, 

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

Hung Si Vuong appeals from the trial court’s decision on 

resentencing under Penal Code section 1385 and former section 

1170, subdivision (d)(1)1 declining to strike his five-year serious 

felony prior. Because the record does not establish the trial court 

was aware of, and applied, the provisions of the governing statute

—section 1385, as amended effective January 1, 2022—we vacate 

Vuong’s sentence and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

1. The crime, trial, and original sentence

The facts giving rise to this case are set forth in our 2018 

opinion in Vuong’s direct appeal, People v. Vuong (May 29, 2018, 

B276627) [nonpub. opn.] (Vuong I). On April 30, 2015, around 

11:00 a.m., Armand Vargas left his townhome to take his mother 

to the hairdresser. He returned home less than an hour later. 

Vargas drove into his garage, walked across his covered patio, 

and went into the townhome through a sliding glass door. 

Vargas noticed the glass door was open about 12 inches. 

He heard footsteps upstairs. Vargas walked quietly around 

the kitchen and living room for a few minutes. He went to 

the base of the stairs where there was a mirror to see if he 

could see anything, but he could not. Then he went back outside, 

into the alley, and called 911. (Vuong I.)

1 References to statutes are to the Penal Code. The 

Legislature later amended the recall and resentencing provisions 

of section 1170 to section 1170.03 and then renumbered it as 

section 1172.1. (Assembly Bill No. 200 (2021-2022 Reg. Sess.) 

(Stats. 2022, ch. 58, § 9), effective June 30, 2022. See People 

v. E.M. (2022) 85 Cal.App.5th 1075, 1080, fn. 3.) We cite 

section 1172.1 to refer to the current version of the statute; 

we sometimes refer to “former section 1170(d)” to refer to 

subdivision (d) of section 1170 as it existed before the recent 

legislation.
3

As Vargas was talking to the 911 operator, Vuong came 

through the gate from Vargas’s patio into the alleyway. Vuong 

“seemed surprised” to see Vargas. Seeing that Vargas was 

on the phone, Vuong “asked [him] to wait” then said, “I made 

a mistake.” Vargas asked Vuong, “What are you doing in my 

house?” At trial, Vargas could not recall Vuong’s response. 

At some point, Vuong said “verify” and pointed to a nearby 

townhome that was under construction. After this brief exchange 

with Vargas, Vuong started to walk briskly around the corner. 

(Vuong I.)

Officer David Reyes arrived and found Vuong in a white 

van near the front of Vargas’s townhome. Reyes conducted a 

field show up and Vargas identified Vuong as the man he had 

seen coming out of his patio. Vargas did not find any of his 

property missing. (Vuong I.)

In January 2016 a jury found Vuong guilty of first degree 

burglary and found true an allegation that another person was 

present in the residence when the crime was committed. In a 

priors trial, the jury found Vuong had suffered a prior strike for 

first degree residential burglary in 2004. The jury also found 

Vuong had been convicted of three burglaries in Hawaii in 1995 

and 1996.2 (Vuong I.)

2 The Attorney General’s statement that the jury “found 

true the allegations that [Vuong] suffered four prior convictions 

for serious and violent felonies” is misleading. While the jury 

found true the allegations that Vuong had been convicted of 

four burglaries—one in California and three in Hawaii—the 

trial court later found the prosecution had not met its burden 

to establish the Hawaii convictions were strikes under California 

law.
4

The trial court denied Vuong’s Romero motion3 and 

sentenced him to 18 years in the state prison. The court chose 

the upper term of six years and doubled it because of the strike. 

The court imposed five years under section 667, subdivision (a)(1)

for the 2004 serious felony prior plus one year under section 

667.5, subdivision (b) for Vuong’s commitment to prison in 

the Hawaii case. We affirmed Vuong’s conviction. (Vuong I.)

2. The Secretary’s letter and report

In September 2021 Kathleen Allison, the Secretary of 

the California Department of Corrections and Rehabilitation 

(CDCR), sent a letter to the trial court. Secretary Allison 

requested that the court resentence Vuong under former 

section 1170(d). The letter noted courts had been barred from 

striking prior serious felony convictions but, effective January 1, 

2019, courts were authorized to do that under section 1385. 

Secretary Allison stated she had “personally review[ed] inmate

Vuong’s commitment offense and in-prison conduct,” and she

“recommend[ed] that [his] sentence be recalled and that he be

resentenced in accordance with . . . section 1170, subdivision 

(d)(1).”

The Secretary’s letter enclosed a five-page report dated 

August 20, 2021. The report summarized the facts of Vuong’s 

2015 crime and his criminal and parole history. The report 

stated Vuong had “remained disciplin[e] free during this term 

of incarceration” and he had “no pending disciplinary actions.” 

He had completed a number of courses and earned an A.A. 

degree. According to a July 2018 Education Progress Report, 

“Vuong received satisfactory marks in five reviewable categories 

and an unsatisfactory mark in one reviewable category for his 

3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
5

work in Vocational Computer & Related Technology.” Vuong 

had “worked towards completing assignments and was respectful 

and resourceful.” He had “made efficient use of time in class 

and produced quality work.” However, Vuong had been “caught 

cheating on a test, which was described as unethical behavior 

and required the instructor to change the entire test.”

According to a January 2019 Education Progress Report, 

Vuong “received satisfactory marks in all reviewable categories” 

in the same computer technology course, he had “passed 

testing in Microsoft Word and Microsoft PowerPoint,” and 

he “was always cheerful and helped others without hesitation.” 

Education Progress Reports dated October 2018, March 5, 

2019, March 29, 2019, July 2019, and August 2019 reflected 

“satisfactory marks in all reviewable categories” in computer 

and engine repair classes. In November 2020 Vuong was 

“accept[ed] into the Phi Theta Kappa Honor Society.”

The report’s discussion of Vuong’s work in prison is 

somewhat difficult to understand. A February 2021 report 

stated, “Vuong received satisfactory marks in all reviewable 

categories in his assignment as a Dining Room Worker,” 

but then noted “he never reported to work due to COVID-19 

procedures.” Another report dated June 2021 said Vuong 

“received unsatisfactory marks in all reviewable categories 

for his performance as a Dining Room Worker,” adding, “Vuong 

had never worked . . . due to the modified program caused 

by Covid-19.” The report continued, “Since phase, three [sic] 

of the program was initiated, Vuong had not reported to work. 

The supervisor was requesting him to be reassigned as soon 

as possible.”

The report listed certificates Vuong had received for 

completing various programs, including anger management, 

domestic violence, and “self-development.”
6

3. Proceedings in the trial court on the CDCR 

recommendation

The court appointed counsel for Vuong and set the matter 

for a status conference. In March 2022, Vuong’s counsel filed 

a Memorandum in Support of Resentencing. Counsel asked 

the court to strike both the five-year serious felony prior and 

the one-year prison prior. Counsel attached an eight-page report 

by a court-appointed social worker, Regina Robles. Robles—

who had interviewed Vuong—stated he’d been “born during the 

middle of the Vietnam War,” one of six children whose mother 

“struggled to keep her children alive” after their father moved 

to the city to find work. When Vuong was 13, his mother sent 

him and his 17-year-old brother “towards the harbor.” Vuong 

and his brother “escaped” in a small boat to a refugee camp 

in Malaysia.

Vuong and his brother made it to Hawaii where a “host 

family” helped them find an apartment and “qualify for welfare.” 

After the hosts gave Vuong and his brother the keys to the 

apartment, the boys “never heard from them again.” Vuong 

injured his back working in construction and began using 

methamphetamine.

Vuong’s counsel also attached copies of his transcripts 

from Cuesta College, which he attended while in prison, various 

certificates and “laudatory” “chrono[s],” a document entitled 

“Detailed Release Plan,” letters, and a July 2016 psychologist’s 

report apparently prepared for Vuong’s trial counsel.

The prosecution agreed the court was required to recall the

sentence. The prosecution also agreed the court could no longer 

impose the one-year prison prior in light of Senate Bill No. 136 

(Stats. 2019, ch. 590). But the prosecution opposed Vuong’s 

request that the court not re-impose the five-year serious felony 
7

prior. The prosecution also asked the court again to choose the

upper term of six years as the base term.

The parties appeared before the trial court on April 19, 

2022. The court did not discuss the nine enumerated “mitigating 

circumstances” listed in section 1385, as amended effective 

January 1, 2022 (discussed below). Nor did the court mention 

the Legislature’s pronouncement in the amended statute that 

the presence of one (or more) of the nine factors “weighs greatly 

in favor of dismissing the enhancement[ ] unless the court finds 

that dismissal of the enhancement would endanger public safety.” 

(§ 1385, subd. (c)(2).) The court asked counsel, “[I]s there 

a prohibition of me taking a look at his record in its totality? 

Because I wouldn’t be looking at . . . just that single 

conviction. . . . I’m looking at his history in its totality, 

and it’s a horrible history. This man’s a career criminal.”

Vuong’s counsel began to discuss Vuong’s conduct in prison. 

The court interrupted: “Let me stop you right there. What 

I want you to explain is his cheating on a test that caused the 

whole curriculum or the whole testing procedure to be redone. 

This is what Mr. Vuong did while he was in prison.” Counsel 

replied, “Yes, Your Honor. That’s one instance of . . . .” The 

court interrupted, “That’s a very serious incident, counsel.”

Counsel emphasized Vuong had “multiple positives,” 

including his A.A. degree, making the honor roll in community 

college, and “rehabilitative programming.” Counsel said Vuong 

had no disciplinary “write-ups.” Counsel noted Vuong had been 

a refugee and had “a history of trauma.” The court replied, “Well, 

I’ll tell you this. And I don’t mean to inject myself in there, but 

I was born in Cuba and I was also a refugee.”

The court noted there had been “a lengthy, lengthy Romero

type hearing” and the court had found the Hawaii burglaries 

“did not quite match up to the burglary statutes here so that’s 
8

the only reason he didn’t get a 25-to-life sentence.” The court 

added, in its opinion, Vuong is “the picture-perfect person for a

three strikes violation.”

The court continued: “The man has learned nothing in 

the time that he was incarcerated.” The court said Vuong served 

10 years on the Hawaii convictions, then came to California and 

did “the exact same thing.” The court referred to the facts of 

the 2015 California burglary, noting Vuong was on the second 

floor of the victim’s house, then fled from the police. The court 

again mentioned the 2018 cheating incident in prison: “He’s 

manipulating a test there.” Even if Vuong didn’t receive a 

write-up for it, the court added, “[I]t tells you . . . who this 

individual is. It tells you the dishonesty that Mr. Vuong will 

pursue in order to gain a benefit for himself.”

The court said it was “not confident at all that . . . if he 

were to be released today, that he would not continue on his 

criminal endeavors based on his history. History has a tendency 

to repeat itself.” The court again referred to the cheating 

incident: “[I]n state prison, you have the gall to cheat on a test.” 

Counsel told the court it was “ignoring” “the mitigation factors.” 

The court replied it was “looking at the totality of the 

circumstances,” including “the conduct . . . that [Vuong] exhibited 

in walking into people’s apartments in Hawaii while people 

were there in some cases.” The court said it was “not ignoring 

the few years of good conduct he’s had” but “that mitigation 

is greatly outweighed . . . by everything else.”

The court continued, “[Vuong] displayed not one ounce of 

honesty throughout these procedures, and he has maintained his 

criminal conduct unabated for decades. . . . The cheating is just 

one additional factor that an individual who is in custody has 

the temerity to engage in.”
9

Vuong then addressed the court. Vuong said he was 57 

years old and, thanks to the rehabilitation prison had provided, 

he was “no longer lost and confused.” Vuong told the court he 

was “no longer the person that [he] was,” that he had “qualified” 

for a halfway house, and that he is a carpenter. The court then 

asked Vuong some questions. The court told Vuong residential 

burglaries were “devastating” crimes, adding, “You completely 

shatter everyone’s . . . sense of well-being, their sense of security. 

A man’s home is his castle. When someone intrudes [into] it, 

it’s a horrible thing.”

The court said it was striking the one-year prison prior 

“only . . . because I have to. Otherwise, I wouldn’t.” The court 

stated, “The totality of the circumstances in this case and the 

negative aspects of Mr. Vuong’s conduct, the entirety of his 

history, including his performance while in state prison, outweigh 

any mitigating factor . . . that would justify this court in striking 

both the one-year prior and the five-year prior.” The court then 

resentenced Vuong to 17 years in prison: the upper term of 

six years, doubled, plus the serious felony prior.

DISCUSSION

Section 1172.1 authorizes a trial court, at any time upon 

the recommendation of the Secretary of CDCR (among others), 

to recall a defendant’s sentence and resentence him in the same 

manner as if he had not previously been sentenced, provided the 

new sentence is no greater than the initial sentence. (§ 1172.1, 

subd. (a)(1); People v. McMurray (2022) 76 Cal.App.5th 1035, 

1040.) A CDCR recommendation “furnishes the court with 

jurisdiction it would not otherwise have to recall and resentence 

and is ‘an invitation to the court to exercise its equitable 

jurisdiction.’ ” (McMurray, at p. 1040, quoting People v. Frazier
10

(2020) 55 Cal.App.5th 858, 866.)4 As the prosecution conceded 

in the trial court, upon receipt of Secretary Allison’s letter 

the trial court was required to recall Vuong’s sentence and 

resentence him.

As amended by Senate Bill No. 81 (2021-2022 Reg. Sess.) 

(Stats. 2021, ch. 721, § 1), “section 1385 grants trial courts 

‘the authority’—and simultaneously imposes upon them a duty—

‘to strike or dismiss a [sentencing] enhancement’ (or, if they 

choose, the ‘additional punishment for that enhancement’) 

if doing so is ‘in the furtherance of justice.’ (§ 1385, subds. (b)(1), 

(a) [granting ‘authority’]; id., subd. (c)(1) [‘the court shall dismiss

an enhancement if it is in the furtherance of justice to do so’ 

(italics added)].)” (People v. Walker (2022) 86 Cal.App.5th

386, 395 (Walker), review granted Mar. 22, 2023, S278309.) 

Notwithstanding the word “shall,” dismissal of an enhancement 

remains permissive, not mandatory. “[T]he statement that 

a court ‘shall’ dismiss certain enhancements appears as a 

subpart to the general provision that a ‘court shall dismiss 

an enhancement if it is in the furtherance of justice to do so.’ 

(§ 1385, subd. (c)(1), italics added.)” (People v. Anderson (2023) 

88 Cal.App.5th 233, 239, review granted Apr. 19, 2023, S278786.)

“In other words, the dismissal of the enhancement is conditioned 

on a court’s finding dismissal is in the interest of justice.” (Ibid. 

4 Section 1172.1 expressly authorizes the court to “consider 

postconviction factors, including, but not limited to, the 

disciplinary record and record of rehabilitation of the defendant 

while incarcerated, evidence that reflects whether age, time 

served, and diminished physical condition, if any, have reduced 

the defendant’s risk for future violence, and evidence that reflects 

that circumstances have changed since the original sentencing 

so that continued incarceration is no longer in the interest of 

justice.” (§ 1172.1, subd. (a)(4).)
11

See also Walker, at p. 396 [appellate court is required to consider 

where the phrase “shall dismiss” fits into the context of the 

statute as a whole].)

“Section 1385 makes clear that whether dismissal of an

enhancement is ‘in the furtherance of justice’ is a ‘discretion[ary]’

call for the trial court to make. (Id., subd. (c)(2) [‘In exercising its 

discretion . . .’ (italics added)]; id., subd. (c)(3) [‘court may exercise 

its discretion at sentencing’ or ‘exercis[e] its discretion before, 

during, or after trial or entry of plea’ (italics added)].)” (Walker, 

supra, 86 Cal.App.5th at p. 395.)5

Senate Bill No. 81 provided direction on how trial courts 

are to exercise their discretion in deciding whether to dismiss 

sentencing enhancements. (Walker, supra, 86 Cal.App.5th 

at p. 395.) “[S]ection 1385 now enumerates nine ‘mitigating 

circumstances,’ and mandates that the presence of any [of those] 

circumstance[s] ‘weighs greatly in favor of dismissing the 

enhancement . . . unless the court finds that dismissal of the 

enhancement would endanger public safety.’ (Id., subd. (c)(2), 

italics added.) Dismissal endangers public safety if ‘there is a

likelihood that the dismissal of the enhancement would result 

in physical injury or other serious danger to others.’ (Ibid.)” 

(Walker, at p. 395.)

In Walker, our colleagues in Division Two considered 

the question, “What weight must a trial court give a mitigating 

circumstance in order to give it ‘great weight’ within the 

meaning of subdivision (c)(2) of section 1385?” (Walker, supra, 

86 Cal.App.5th at p. 396.) The Walker court concluded 

5 Walker did not involve a recommendation under section 

1172.1; it arose from a petition for a writ of habeas corpus. 

(Walker, supra, 86 Cal.App.5th at p. 393.) That difference 

does not affect its application to this case.
12

the provisions of subdivisions (c)(1) and (c)(2) of section 1385 

collectively “dictate that trial courts are to rebuttably presume 

that dismissal of an enhancement is in the furtherance of justice 

(and that its dismissal is required) unless the court makes a 

finding that the resultingly shorter sentence due to dismissal 

‘would endanger public safety’ ” as section 1385 defines that 

term. (Walker, at p. 398. But see People v. Ortiz (2023) 87 

Cal.App.5th 1087, 1090, 1098 (Ortiz), review granted Apr. 12, 

2023, S278894.)

On March 22, 2023, our Supreme Court granted review 

in Walker. The high court stated, “The issue to be briefed and 

argued is limited to the following: Does the amendment to Penal

Code section 1385, subdivision (c) that requires trial courts to 

‘afford great weight’ to enumerated mitigating circumstances

(Stats. 2021, ch. 721) create a rebuttable presumption in favor of 

dismissing an enhancement unless the trial court finds dismissal 

would endanger public safety?” (S278309.) The court ordered 

that Walker may continue to be cited for its persuasive value 

pending review. (Ibid.)

One of the nine enumerated mitigating circumstances in 

the amended statute is, “The enhancement is based on a prior 

conviction that is over five years old.” (§ 1385, subd. (c)(2)(H).) 

It is undisputed that Vuong was convicted of his prior strike in 

November 2004.6 Accordingly, the question before the trial court 

6 Defense counsel also argued the mitigating factor of 

“childhood trauma” applies in this case, citing the social worker’s 

report. (See § 1385, subd. (c)(2)(E) [“[t]he current offense is 

connected to prior victimization or childhood trauma”].) Without 

specifically addressing that mitigating factor, the court stated, 

“I have evidence that he was in Vietnam and it was a war-torn 

country and his parents sent him to get him away from all that. 

But that’s all. I don’t have a thing from a psychologist.” Section 
13

was whether striking Vuong’s serious felony prior “would 

endanger public safety”—that is, whether the record 

demonstrated “a likelihood that the dismissal of the enhancement 

would result in physical injury or other serious danger to others.” 

(§ 1385, subd. (c)(2); Walker, supra, 86 Cal.App.5th at p. 395.)7

The resentencing hearing in this case took place before our 

colleagues in Division Two issued Walker. In her April 12, 2022 

resentencing memorandum, the prosecutor quoted section 1385 

as amended, including the provision that, “In exercising its 

discretion under [subsection (c)(1)], the court shall consider 

and afford great weight to evidence offered by the defendant to 

prove that any of the mitigating circumstances in subparagraphs 

1385, subdivision (c)(6)(A) authorizes the court, in determining 

whether a defendant suffered childhood trauma that is 

“connected to the offense,” to consider “any relevant and credible 

evidence, including, but not limited to, police reports, preliminary 

hearing transcripts, witness statements, medical records, or 

records or reports by qualified medical experts.”

On appeal, Vuong also argues—as he did in the trial court

—that another mitigating factor was that “[m]ultiple 

enhancements are alleged in a single case.” (§ 1385, subd. 

(c)(2)(B) [“In this instance, all enhancements beyond a single 

enhancement shall be dismissed.”].) But once the trial court 

dismissed the one-year prison prior enhancement, the only 

enhancement remaining in this case is the five-year serious 

felony prior.

7 We acknowledge the Sixth District in Ortiz, supra, 87 

Cal.App.5th at pp. 1090-1093, 1096, disagreed with Walker, 

rejecting the defendant’s contention there “that the mitigating 

factor [that the defendant’s current offense—felony vandalism—

was not a violent felony] warranted a presumption in favor of 

dismissal that could only be rebutted by a showing that dismissal 

would endanger public safety.” Pending guidance from our high 

court, we find the Walker court’s analysis more persuasive.
14

(A) to (I) are present. Proof of the presence of one or more of 

these circumstances weighs greatly in favor of dismissing the 

enhancement.” (§ 1385, subd. (c)(2).) The prosecutor went on, 

however, to quote at length from the hearing on Vuong’s Romero

motion. At the April 19, 2022 hearing, Vuong’s counsel also 

told the court it had “to look at the mitigation factors” listed 

in the revised statute.

Notwithstanding these references by counsel to the 

requirements of section 1385 as amended, the trial court never

mentioned any of the nine enumerated mitigating circumstances

—including the undisputed fact that Vuong’s serious felony prior 

took place more than five years before his 2015 burglary—nor 

did it acknowledge the statutory mandate to “consider and afford

great weight” to the defendant’s evidence of any mitigating 

factor, which—the Legislature stated—“weighs greatly in favor 

of dismissing the enhancement.” (§ 1385, subd. (c)(2).) And 

while the court stated it was not at all confident Vuong would 

not “continue on his criminal endeavors” if released, it made 

no explicit finding that “dismissal of the enhancement would 

endanger public safety” as defined in the statute. (Ibid.) Nothing 

in the record suggests the victim in the 2015 California burglary, 

or any of the victims in the Hawaii burglaries, suffered “physical 

injury.” Of course, residential burglary with a true finding 

on a “person present” allegation is a violent felony under 

section 667.5, subdivision (c)(21). (See Doe v. Saenz (2006) 

140 Cal.App.4th 960, 988 [“Occupied burglary plainly presents 

a potential for violence and consequently merits enhanced 

punishment.”].) But the court did not make a finding that—

even though no one sustained physical injury in the burglaries—

dismissing Vuong’s five-year prior “would endanger public 

safety.”
15

In short, where—as here—we cannot determine from 

the record whether the court was aware of, and complied with, 

the provisions of the governing statute, we must remand the 

matter for the court to apply the applicable law. (See People v. 

Johnson (2022) 83 Cal.App.5th 1074, 1093 [“remand for informed 

exercise of the trial court’s discretion is appropriate”].) Here, 

that governing law requires a rebuttable presumption that 

Vuong is entitled to have his serious felony prior stricken—

as it is more than five years old—absent a factual finding of 

danger to public safety under section 1385, subdivision (c)(2). 

In exercising its discretion, the trial court must comply with 

the statutory provision that the presence of a mitigating 

circumstance (whether it’s the more-than-five-years-old factor 

or any other mitigating factor Vuong proves on remand) “weighs 

greatly in favor of dismissing the enhancement,” unless the court 

finds striking that enhancement would endanger public safety 

as the amended statute defines it.
16

DISPOSITION

Hung Si Vuong’s sentence is vacated. The matter is

remanded for resentencing and the trial court’s exercise of its 

discretion in accordance with this opinion and the dictates of 

Penal Code section 1385.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J.

LAVIN, J.