Filed 4/23/18 P. v. Cho 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v.

BEONG KWUN CHO,

Defendant and Appellant.


G054074

(Super. Ct. No. 11ZF0113)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals, Judge. Affirmed in part, reversed in part, and remanded for resentencing.
Stephen M. Vasil, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Beong Kwun Cho of voluntary manslaughter (Pen. Code, § 192, subd. (a); all further statutory references are to the Penal Code), and found true a sentence enhancement for personal use of a firearm (former § 12022.5, subd. (a)).
The court sentenced Cho to an aggregate term of 10 years, comprised of the midterm sentence of six years for the voluntary manslaughter, plus a consecutive midterm of four years for the section 12022.5, subdivision (a) firearm enhancement.
Cho asserts the court violated his constitutional rights to due process and equal protection by relying on improper and unsupported reasons to impose midterm sentences. Cho also argues a recent amendment to section 12022.5 applies retroactively. Under the amended statute, the sentencing court now has discretion to strike the section 12022.5, subdivision (a) firearm enhancement under section 1385, subdivision (a).
The Attorney General concedes the section 12022.5, subdivision (a) issue, and we accept the concession. Thus, the matter must be remanded to allow the trial court to consider striking the firearm enhancement.
In addition, because the court exercised its discretion in the original sentencing, the matter must be remanded for the court to reconsider all of its other sentencing choices in light of the changed circumstances. (People v. Calderon (1993) 20 Cal.App.4th 82, 88 (Calderon).) In short, the disposition of the section 12022.5, subdivision (a), firearm enhancement moots Cho’s challenges to the original sentence.
FACTS AND PROCEDURAL HISTORY
1. The Crime
The parties largely agree on the facts of the crime. Cho, a South Korean national who overstayed his visa, admitted he shot Yeon Woo Lee, a childhood friend and a fellow South Korean national, in the head from point blank range. Cho said Lee had repeatedly prodded him over the course of about 18 months to help Lee commit surrogate suicide. Lee devised a complicated scenario to make his death look like a robbery, or an accident, and he purchased a gun.
On January 24, 2011, Lee put his plan into motion. However, when the critical moment arrived, Cho hesitated. Lee then taunted Cho by telling Cho he had raped Cho’s wife, and he intended to rape Cho’s daughter. After Lee made these statements, Cho shot Lee in the head.
Cho was charged by indictment with first degree murder (§ 187, subd. (a)), and it was alleged Cho personally discharged a firearm causing the death of Lee (§ 12022.53, subd. (d)).
At trial, Cho called an expert in human development and family studies to testify about the South Korean culture. In particular, the expert testified suicide is considered shameful in South Korea, which places great emphasis on social status and wealth. In addition, the expert testified male bonds become unbreakable due to the cultural tendency to segregate the sexes. When two men have a close bond, the more dominant individual influences the weaker one.
Other defense witnesses testified Lee was the dominant personality in his relationship with Cho.
2. The Sentencing Hearing
The probation report listed three circumstances in aggravation with respect to the crime: the crime involved great violence and great bodily harm (Cal. Rules of Court, rule 4.421(a)(1); additional references to rules are to the California Rules of Court); it involved a gun (rule 4.421(a)(2)); and the manner of the crime indicated planning (rule 4.421(a)(8)).
There were also mitigating circumstances listed. The probation officer cited Lee’s involvement in his own death (rule 4.423(a)(2)), and the fact Lee manipulated Cho and persuaded him to commit a crime without any evidence Cho had a prior criminal predisposition (rule 4.423(a)(5)). In addition, Cho had no prior criminal record (rule 4.423(b)(1)), and he acknowledged his guilt early in the proceedings (rule 4.423(b)(3)).
Cho also filed a sentencing brief. He challenged the sufficiency of the evidence to support the aggravating circumstances listed by the probation officer. He argued the probation officer had misconstrued the facts. In addition, Cho asserted there were additional mitigating circumstances not mentioned in the probation report.
At the hearing, the court acknowledged receipt of the probation report and Cho’s sentencing brief, in addition to numerous letters from Lee’s friends and relatives. The prosecutor asserted the crime warranted an aggregate sentence of 21 years. Defense counsel argued for a mitigated term.
After hearing the arguments of counsel, the court gave a lengthy statement delineating the court’s thought process. The court acknowledged both circumstances in mitigation and aggravation, and announced “essentially they wash.” Thereafter, the court imposed the midterm sentence for both the crime and firearm enhancement.
DISCUSSION
As noted, Cho argues the court relied on irrelevant or improper reasons to impose the midterm sentences. We need not address these issues.
At the time Cho was sentenced, imposition of sentence for a section 12022.5, subdivision (a) firearm enhancement was mandatory. (Former § 12022.5.) However, effective January 1, 2018, the court may strike the enhancement for personal use of a gun in the interest of justice (§§ 1385, subd. (a), 12022.5, subd. (c).) This amendment carries the potential for a reduced punishment, and applies retroactively to defendants like Cho, whose judgments are not yet final on the statute’s operative date. (People v. Brown (2012) 54 Cal.4th 314, 323; In re Estrada (1965) 63 Cal.2d 740, 745.)
Moreover, because the court exercised its discretion when imposing the original sentence, the matter must be remanded for the court to reconsider its sentencing choices in light of the changed circumstances. (Calderon, supra, 20 Cal.App.4th at p. 88.)
Further, our remand for a new sentencing hearing moots Cho’s challenges to the court’s exercise of its discretion at the original sentencing hearing.
DISPOSITION
The judgment is reversed, the convictions are affirmed, and the matter is remanded to allow the court to consider striking the section 12022.5, subdivision (a) firearm enhancement in the interests of justice (§ 1385, subd. (a)), and to resentence Cho in accordance with the applicable statutes and rules, bearing in mind the new sentence cannot exceed the original sentence. (People v. Burbine (2003) 106 Cal.App.4th 1250.)



THOMPSON, J.

WE CONCUR:



ARONSON, ACTING P. J.



FYBEL, J.