People v. Sirypangno CA4/1 ( 2021 )

Filed 10/14/21 P. v. Sirypangno CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078188
Plaintiff and Respondent,
v. (Super. Ct. No. SCD191585-04)
KONESAVANH DONALD
SIRYPANGNO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Peter C. Deddeh, Judge. Reversed and remanded for further proceedings.
George L. Schraer, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Julie L. Garland, Assistant Attorney
General, Daniel Rogers, Lynne G. McGinnis and Jennifer A. Jadovitz, Deputy
Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
In 2008, Konesavanh Donald Sirypangno was convicted by a jury of
first degree murder, attempted murder, and assault with a semiautomatic
firearm, with true findings that the crimes were committed for the benefit of
a criminal street gang, that Sirypangno was a principal and that a principal
personally and intentionally discharged a firearm causing great bodily injury
or death.
In April 2019, Sirypangno filed a petition for resentencing under Penal
Code section 1170.95.1 Section 1170.95 altered liability for those convicted of
felony murder and murder under the natural and probable consequences
doctrine and provided such defendants a means to petition the court for
resentencing.
In his section 1170.95 petition, Sirypangno sought reversal of his
convictions for second degree murder and attempted murder. The People
opposed the petition, arguing that Sirypangno is not entitled to relief as a
matter of law based on this court’s decision in the state habeas corpus
proceeding in which Sirypangno’s murder conviction was reduced to second-
degree murder. The trial court denied Sirypangno’s petition without issuing
an order to show cause or holding an evidentiary hearing.
On appeal, Sirypangno makes two arguments. First, he contends that
the trial court erred procedurally in denying his section 1170.95 petition
without issuing an order to show cause. Second, Sirypangno contends that
the trial court erred in denying his petition based on its finding that he was a
direct aider and abettor in the offenses.
1 All further statutory references are to the Penal Code unless otherwise
indicated.
2
The People concede that the trial court erred in failing to issue an order
to show cause on the petition with respect to Sirypangno’s second degree
murder conviction. However, the People argue that, with respect to the
attempted murder conviction, Sirypangno is ineligible for resentencing relief
under section 1170.95, as a matter of law.2
We accept the People’s concession that the trial court erred in failing to
follow the procedure required by section 1170.95 with respect to Sirypangno’s
second degree murder conviction.3 However, we need not consider
Sirypangno’s request for section 1170.95 resentencing relief with respect to
his attempted murder conviction because, in a related habeas corpus
proceeding, we have determined that Sirypangno is entitled to have that
conviction vacated. A separate opinion in that matter is being filed
concurrently with this opinion. With the filing of the opinion in the habeas
corpus matter, Sirypangno currently does not stand convicted of attempted
2 After the parties briefed these issues, the Legislature passed and the
Governor signed Senate Bill 775, which amends section 1170.95 to apply its
provisions to convictions for attempted murder. (2021 Cal. Legis. Serv.
Ch. 551 (S.B. 775).) The amendments enacted by the Legislature also
(1) codify the holdings of People v. Lewis (2021) 11 Cal.5th 952, which we
discuss at length in this opinion, (2) affirm that the standard of proof at a
resentencing hearing is proof beyond a reasonable doubt, and (3) clarify what
evidence a court may consider at that hearing. (Ibid.) Senate Bill 775 was
not passed as urgency legislation, and therefore, it did not become effective
upon its enactment, but instead will become effective on January 1, 2022.
(See Cal. Const., art. IV, § 8, subd. (c).)
3 Sirypangno concedes that his success on the procedural argument
regarding the lack of the issuing of an order to show cause forestalls the need
to consider his second argument.
3
murder; his request for resentencing relief related to that conviction has thus
been rendered moot.4
II.
FACTUAL AND PROCEDURAL BACKGROUND
In 2005, Sirypangno, while armed with a firearm, participated in a
verbal altercation at a party with another young man, the victim of the
murder charge.5 After the verbal altercation, Sirypangno gave his weapon to
fellow Oriental Killer Boys (OKB) gang member David Phommachanh, who
left the party but then returned after receiving a telephone call to come and
pick up Sirypangno. Sirypangno and Phommachanh, who upon returning
had put a bandana on his face, and some other gang members waited outside
for the young man to emerge from the party. When the man emerged,
Sirypangno went up to him, said something to him about being “ ‘the fool that
fucking told me to suck your dick,’ ” and punched or tried to punch him.
Sirypangno and at least one other OKB member proceeded to engage in a
physical fight with the man and one of the man’s friends. After another of
the man’s friends attempted to pull him away from the fight, Phommachanh
pointed the gun at the man and pulled the trigger. When the gun did not
fire, Phommachanh cleared an unfired round and then fired five shots toward
4 Although the People may elect to try Sirypangno again on the charge of
attempted murder pursuant to any theories of liability that remain viable, at
this point in time, he has no conviction for which section 1170.95 relief could
be granted, even if such relief were available with respect to an attempted
murder conviction.
5 Because the underlying facts of the case are of minimal relevance in the
current appeal, we provide only a brief summary and focus more on the
procedural history of the matter leading up to this appeal. We take our
summary of the underlying facts from our previous opinion in People v.
Sirypangno (Feb. 15, 2012, D055015) [nonpub. opn.].
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the man and the man’s friend. Phommachanh killed the man and wounded
his friend.
In 2008, Sirypangno and Phommachanh were charged in an amended
pleading with first degree murder (§ 187, subd. (a); count 1), attempted
murder (§§ 187, subd. (a), 664; count 2), and assault with a semi-automatic
firearm (§ 245, subd. (b); count 3). The operative charging document further
alleged that Sirypangno was a principal, that a principal personally and
intentionally discharged a firearm during the commission of the crimes
charged in counts 1 and 2 (§§ 186.22, 12022.53, subd. (e)), and that both
Sirypangno and Phommachanh committed all of the charged crimes for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)). In 2008, a jury found
Sirypangno guilty as charged.
A panel of this court affirmed Sirypangno’s convictions in People v.
Sirypangno (Feb. 15, 2012, D055015) [nonpub. opn.].
In 2018, this Court granted Sirypangno’s request for habeas relief as to
his conviction for first degree murder, pursuant to People v. Chiu (2014)
59 Cal.4th 155 and In re Martinez (2017) 3 Cal.5th 1216. We vacated
Sirypangno’s conviction for first degree murder and directed the superior
court to modify the judgment to second degree murder if the People did not
elect to retry Sirypangno for first degree murder pursuant to section 1382.
The People did not elect to retry Sirypangno, and the trial court set a hearing
to resentence him for second degree murder.
In April 2019, Sirypangno petitioned for resentencing under section
1170.95. The People initially filed a response in which they agreed that
Sirypangno may be entitled to relief. However, the People then filed an
amended response in which they argued that Sirypangno was ineligible for
relief as a matter of law based on this court’s decision in the habeas corpus
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proceeding in which Sirypangno was granted relief under Chui and Martinez.
Relying on the fact that this court vacated Sirypangno’s conviction for first
degree murder but permitted the People to elect to retry Sirypangno for
murder, the People argued that this court “implicitly found as a matter of law
that substantial evidence existed in the trial record upon which a jury could
convict [Sirypangno] as a direct aider and abettor of first-degree (and by
extension, second-degree) murder,” and thus based on “the law of the case,”
Sirypangno’s section 1170.95 petition had to be denied.
Sirypangno, who was at this point represented by counsel with respect
to the section 1170.95 petition, filed a reply, arguing that he had made a
prima facie showing of his entitlement to relief under the statute.
The trial court held a hearing on the matter on October 20, 2020. The
entire substance of the hearing involved Sirypangno’s attorney stating, “We
believe an OSC should issue in this matter,” and the trial court responding,
“All right. This is the case that actually was tried in my department, and he
was - - he was a direct aider and abettor, so I’m going to deny the petition.”
Sirypangno filed a timely notice of appeal.
III.
DISCUSSION
A. Relevant legal standards
Senate Bill No. 1437, enacted in 2018, sought “to amend the felony
murder rule and the natural and probable consequences doctrine, as it
relates to murder, to ensure that murder liability is not imposed on a person
who is not the actual killer, did not act with the intent to kill, or was not a
major participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill
amended section 188, which defines malice, and section 189, which defines
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the degrees of murder, in order to address felony murder liability. (Stats.
2018, ch. 1015, § 2–3.)
Senate Bill No. 1437 redefined malice under section 188 to require that
a principal in an offense in which a murder occurs have acted with malice
aforethought. Currently, section 188, subdivision (a)(3) provides in relevant
part: “Except as stated in subdivision (e) of Section 189, in order to be
convicted of murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based solely on his or
her participation in a crime.” Section 189 was amended to include new
subdivision (e), which provides: “A participant in the perpetration or
attempted perpetration of a felony listed in subdivision (a) in which a death
occurs is liable for murder only if one of the following is proven: [¶] (1) The
person was the actual killer[;] [¶] (2) The person was not the actual killer,
but, with the intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the commission of murder
in the first degree[; or] [¶] (3) The person was a major participant in the
underlying felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.” (Stats. 2018, ch. 15, § 3.)
Senate Bill No. 1437 also added a new section, section 1170.95, which
provides a procedure by which those who have been convicted of murder can
seek retroactive relief if the changes in the law with respect to sections 188
and 189 would have precluded their convictions. (Stats. 2018, ch. 1015, § 4.)
Section 1170.95, subdivision (a) allows those “convicted of felony murder or
murder under a natural and probable consequences theory [to] file a petition
with the court that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining counts when all of
the following conditions apply: [¶] (1) A complaint, information, or
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indictment was filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder or murder under the natural and
probable consequences doctrine. [¶] (2) The petitioner was convicted of first
degree or second degree murder following a trial . . . . [¶] (3) The petitioner
could not be convicted of first or second degree murder because of changes to
[s]ection 188 or 189 made effective January 1, 2019.”
Subdivision (c) of section 1170.95 sets out the procedural framework
that a trial court is to follow in processing a petition filed pursuant to the
provision. It currently provides: “The court shall review the petition and
determine if the petitioner has made a prima facie showing that the
petitioner falls within the provisions of this section. If the petitioner has
requested counsel, the court shall appoint counsel to represent the petitioner.
The prosecutor shall file and serve a response within 60 days of service of the
petition and the petitioner may file and serve a reply within 30 days after the
prosecutor[’s] response is served. These deadlines shall be extended for good
cause. If the petitioner makes a prima facie showing that he or she is
entitled to relief, the court shall issue an order to show cause.” (§ 1170.95,
subd. (c).)
The Supreme Court recently clarified some of the procedural aspects of
section 1170.95 in People v. Lewis (2021) 11 Cal.5th 952 (Lewis). Although
subdivision (c) makes two references to a “prima facie showing,” the Lewis
court explained that both refer to a single prima facie showing that is
required under the statute. (Lewis, supra, 11 Cal.5th at p. 962.) In addition,
the statute entitles the petitioner to the appointment of counsel upon the
filing of a facially sufficient petition. (Ibid.) Once the court has appointed
counsel and received briefing from the parties, the court may rely on the
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record of conviction in determining whether a prima facie showing has been
made. (Id. at p. 971.)
However, “[w]hile the trial court may look at the record of conviction
after the appointment of counsel to determine whether a petitioner has made
a prima facie case for section 1170.95 relief, the prima facie inquiry under
subdivision (c) is limited.” (Lewis, supra, 11 Cal.5th at p. 971.) “In reviewing
any part of the record of conviction at this preliminary juncture, a trial court
should not engage in ‘factfinding involving the weighing of evidence or the
exercise of discretion.’ ” (Id. at p. 972, italics added; People v. Drayton (2020)
47 Cal.App.5th 965, 980 (Drayton).) “Like the analogous prima facie inquiry
in habeas corpus proceedings, ‘ “the court takes petitioner’s factual
allegations as true and makes a preliminary assessment regarding whether
the petitioner would be entitled to relief if his or her factual allegations were
proved. If so, the court must issue an order to show cause.” ’ ” (Lewis, supra,
at p. 971; Drayton, supra, 47 Cal.App.5th at p. 978.)
Once the trial court issues an order to show cause, it must then conduct
a hearing pursuant to the procedures and burden of proof set out in section
1170.95, subdivision (d) unless the parties waive the hearing or the
petitioner’s entitlement to relief is established as a matter of law by the
record. (§ 1170.95, subd. (d)(2); Drayton, supra, 47 Cal.App.5th at pp. 980–
981.)
Although a court should not reject a petitioner’s factual allegations on
credibility grounds without first conducting an evidentiary hearing (Lewis,
supra, 11 Cal.5th at p. 971), the court need not credit factual assertions that
are untrue as a matter of law (Drayton, supra, 47 Cal.App.5th at p. 980).
Thus, “ ‘if the record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition,” then “the court is justified in
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making a credibility determination adverse to the petitioner.” ’ ” (Lewis,
supra, at p. 971.)
B. Sirypangno is entitled to the issuance of an order to show cause regarding
his petition for relief with respect to the second-degree murder conviction
As the People note, the Lewis decision confirmed that at the stage of
the process in which the trial court is to assess whether a section 1170.95
petitioner has made the requisite prima facie showing, the trial court may
not engage in factfinding about the petitioner’s culpability; the court may
deny a petition only if the petitioner is ineligible for relief as a matter of law.
(Lewis, supra, 11 Cal.5th at p. 972.) Again, a court is to “ ‘ “take[ ]
petitioner’s factual allegations as true and make[ ] a preliminary assessment
regarding whether the petitioner would be entitled to relief if his or her
factual allegations were proved.” ’ ” (Id. at p. 971.)
“The record of conviction will necessarily inform the trial court’s prima
facie inquiry under section 1170.95, allowing the court to distinguish
petitions with potential merit from those that are clearly meritless.” (Lewis,
supra, 11 Cal.5th at p. 971.) While the record of conviction for these purposes
includes appellate opinions, “the probative value of an appellate opinion is
case specific, and ‘it is certainly correct that an appellate opinion might not
supply all answers.’ [Citation.]” (Id. at p. 972.) It is only where “ ‘the record,
including the court’s own documents, “contain[s] facts refuting the allegations
made in the petition,” [that] “the court is justified in making a credibility
determination adverse to the petitioner.” ’ [Citation.]” (Id. at p. 971.) Again,
however, the trial court should not engage in “ ‘factfinding’ ” or weigh the
evidence when considering whether the record of conviction establishes that
the petitioner is not entitled to relief as a matter of law. (Id. at p. 972.)
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The People concede that the allegations and record of conviction in this
case do not establish, as a matter of law, that Sirypangno is not entitled to
relief under section 1170.95. In his petition, Sirypangno alleges the following
facts: (1) that “[a] complaint, information, or indictment was filed against
[him] that allowed the prosecution to proceed under a theory of felony murder
or murder under the natural and probable consequences doctrine”; (2) that he
“was convicted of 1st or 2nd degree murder pursuant to the felony murder
rule or the natural and probable consequences doctrine”; and (3) that he
“could not now be convicted of 1st or 2nd degree murder because of changes
made to Penal Code §§ 188 and 189, effective January 1, 2019.”6 Further, as
the People tacitly acknowledge, the record of conviction does not demonstrate,
as a matter of law, that the jury convicted Sirypangno of murder pursuant to
a direct aiding and abetting theory only, and not pursuant to a natural and
probable consequences theory. Sirypangno has therefore met his burden at
the prima facie showing stage, and the trial court should have issued an
order to show cause.
However, rather than issuing an order to show cause, the trial court
engaged in fact-finding by relying on the court’s personal memory of the
evidence presented at trial. The court stated, “This is the case that actually
was tried in my department, and he was - - he was a direct aider and abettor,
so I’m going to deny the petition.” The People acknowledge that this
constitutes improper fact-finding prior to the issuance of an order to show
6 These allegations are made through a form petition in which
Sirypangno check-marked boxes next to these statements. In addition, he
also marked the box next to the allegation that he “was convicted of 2nd
degree murder under the natural and probable consequences doctrine or
under the 2nd degree felony murder doctrine and . . . could not now be
convicted of murder because of changes to Penal Code § 188, effective
January 1, 2019.”
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cause and the evidentiary hearing. The People further concede that this
court should reverse the trial court’s order denying the 1170.95 petition with
respect to the murder conviction and remand the matter with directions to
the trial court to issue an order to show cause with respect to the murder
conviction and to hold a hearing at which the parties may rely on the record
of conviction as well as present new evidence. We agree with the People that
this is the proper resolution with respect to Sirypangno’s petition for section
1170.95 relief regarding his murder conviction.7
C. Sirypangno’s argument regarding the requested relief with respect to his
attempted murder conviction is moot
Sirypangno argues that the trial court erred in denying his petition
without issuing an order to show cause with respect to his attempted murder
conviction. The People assert that section 1170.95 relief is not available for
attempted murder convictions. However, we conclude that Sirypangno’s
argument with respect to his attempted murder conviction has been rendered
moot by our opinion in In re Sirypangno (Oct. 14, 2021, D078705) [nonpub.
opn.], issued in a related habeas corpus proceeding. In that matter, we
conclude that Sirypangno is entitled to have his attempted murder conviction
vacated on the ground that the trial court’s instruction to the jury on a kill
zone theory of criminal liability was improper under the rule announced in
7 Under the terms of section 1170.95, the trial court may consider the
record of conviction, as well as any “new or additional” evidence presented by
the parties, at the hearing. (See § 1170.95, subd. (d)(3) [“At the hearing to
determine whether the petitioner is entitled to relief, the burden of proof
shall be on the prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing. . . . The prosecutor and the petitioner
may rely on the record of conviction or offer new or additional evidence to
meet their respective burdens”].) The statute does not indicate that the court
may rely on the court’s personal recollection of the evidence from the trial in
assessing the petitioner’s eligibility for relief.
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People v. Canizales (2019) 7 Cal.5th 591. We therefore decline to consider
Sirypangno’s argument that the trial court erred in denying his section
1170.95 petition with respect to his attempted murder conviction.
IV.
DISPOSITION
The trial court’s order denying the 1170.95 petition is reversed and the
matter is remanded for further proceedings. With respect to Sirypangno’s
murder conviction, the trial court is directed to issue an order to show cause
and to hold a hearing to determine whether Sirypangno is “eligible to have
his . . . murder conviction vacated and for resentencing.” (§ 1170.95, subd.
(d)(2).)
AARON, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.
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