California v. PhungAnnotate this Case
Defendant Tom Phung was 17 years old when he and fellow Tiny Rascal Gang (TRG) members, riding in about five cars, chased a fleeing vehicle containing eight rival gang members. A TRG member shot and killed one rival and seriously wounded a second. A jury convicted defendant of the lesser included crime of second degree murder, attempted murder, shooting at an occupied motor vehicle, and street terrorism. With respect to the first three crimes, the jury found true the allegations that defendant committed them for the benefit of a criminal street gang and vicariously discharged a firearm causing great bodily injury and death. The trial court sentenced defendant to an aggregate prison sentence of 40 years to life. On appeal, defendant argued he was a passive aider and abettor and consequently his 40-year-to-life sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment. He also argued his concurrent sentence on count 3 should have been stayed pursuant to section 654. He also requested that a clerical error in his abstract of judgment be corrected, which described his count 3 conviction as shooting at an “inhabited dwelling” rather than an “occupied motor vehicle.” The Court of Appeal agreed the abstract of judgment had be corrected as to count 3. In all other respects, the Court affirmed the judgment.