People v. Le CA3 ( 2021 )

Filed 12/13/21 P. v. Le 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C093471
Plaintiff and Respondent, (Super. Ct. No. 97F04934)
v.
VIET KIM LE,
Defendant and Appellant.
Defendant Viet Kim Le appeals from the trial court’s order denying his propria
persona petition for resentencing brought pursuant to Penal Code section 1170.95. 1
Defendant contends the trial court erred by relying on a special circumstance finding to
conclude no prima facie showing had been made. We disagree and affirm the order.
1 Further undesignated statutory references are to the Penal Code.
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FACTS AND PROCEEDINGS
Defendant’s Convictions
In our opinion on direct appeal, we summarized the incident leading to
defendant’s convictions. (People v. Le (Oct. 29, 2003, C041716) [nonpub. opn.].)2 In
1997, Melinda Vo was driving a car in which Thanh La was the passenger. A car driven
by defendant began following close behind the car driven by Vo. Eventually, defendant’s
car pulled up to Vo’s car, and five or six gunshots rang out. Vo was shot and died. La
later explained to police officers that defendant was Vo’s boyfriend.
In 2001, a jury found defendant guilty of murder (§ 187, subd. (a); count one) and
attempted murder (§§ 187, subd. (a), 664). As to count one, the jury found true a special
circumstance allegation that the murder was intentional and perpetrated by means of
discharging a firearm from a motor vehicle with the intent to inflict death. (§ 190.2,
subd. (a)(21).) As to both counts, the jury found that defendant was armed with a
firearm. (§ 12022, subd. (a).)
The trial court sentenced defendant to life without the possibility of parole for the
murder of Vo and to a consecutive term of seven years for the attempted murder of La.
The court also imposed two one-year sentences for the firearm enhancements. This court
affirmed the judgment on direct appeal.
Legal Background
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437), which
became effective on January 1, 2019, was enacted “to amend the felony murder rule and
the natural and probable consequences doctrine, as it relates to murder, to ensure that
2 On our own motion, we take judicial notice of our opinion affirming the judgment of
conviction and sentence in defendant’s direct appeal. (Evid. Code, §§ 459, subd. (a)
[“The reviewing court may take judicial notice of any matter specified in Section 452”],
452, subd. (d) [permitting a court to take judicial notice of records of “any court of this
state”].)
2
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
legislation accomplished this by amending sections 188 and 189 and adding section
1170.95.
Section 188, which defines malice, now provides in 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.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.)
Section 189, subdivision (e) now limits the circumstances under which a person may be
convicted of felony murder: “A participant in the perpetration or attempted perpetration
of a felony listed in subdivision (a) [defining first degree murder] 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. [¶] (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. 1015, § 3.)
Senate Bill No. 1437 also added section 1170.95, which 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 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 . . . .
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[¶] (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.” (§ 1170.95, subd. (a).)
As relevant here, once a complete petition is filed, “[t]he 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 response is served . . . . 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).)
Defendant’s Petition for Resentencing
On November 14, 2019, and again on January 13, 2020, defendant filed a form
petition in propria persona requesting resentencing under section 1170.95. On the form,
defendant declared that the accusatory pleading permitted the prosecutor to proceed
under the felony-murder rule or the natural and probable consequences doctrine, he was
convicted of first or second degree murder, he could not be convicted of this offense as
result of the changes made to sections 188 and 189 that became effective on January 1,
2019, his conduct fell outside the parameters of section 189, subdivision (e), and he was
entitled to be resentenced within the meaning of section 1170.95, subdivision (d)(2). On
December 18, 2019, the trial court appointed counsel to represent defendant.
On January 3, 2020, the People responded that defendant failed to make a prima
facie case that he was eligible for relief because the special circumstance, found true,
demonstrated that defendant was the actual killer, intended to kill, or was a major
participant in the underlying felony who acted with reckless indifference to human life.
Defendant, through counsel, filed a reply brief on October 19, 2020.
On January 5, 2021, the trial court denied the petition on the grounds that the jury
was instructed on direct aiding and abetting but was not instructed on either the natural
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and probable consequences doctrine or the felony-murder rule. The court observed that,
to find defendant guilty of the charged crimes based on aiding and abetting (the only
alternative with which the jury was presented other than that defendant himself was the
shooter), the jury was required to find that defendant intended to aid and abet the murder
and attempted murder.
Regarding the murder, the jury was instructed on malice aforethought murder and
murder perpetrated by means of discharging a firearm from a motor vehicle with specific
intent to inflict death; aiding and abetting that act required the same intent to kill. The
court recognized that, by finding the special circumstance true, the jury necessarily found
that defendant was either the actual killer or acted with intent to kill in aiding and
abetting the first degree murder. Thus, the court concluded that the jury necessarily
found that defendant acted with intent to kill. Similarly, with respect to the attempted
murder conviction, the trial court observed that the instruction on aiding and abetting
required the jury to find that defendant acted with the intent to kill.
Defendant timely appealed. The case was fully briefed in August 2021 and
assigned to this panel on September 30, 2021.
DISCUSSION
Defendant contends that the trial court erred in denying his petition for relief by
relying on the record of conviction, including the jury instructions and the jury’s verdicts.
He argues that he established a prima facie case for relief because his petition met the
conditions set forth in section 1170.95, subdivision (a), and section 1170.95 does not
permit a review of the record during the prima facie determination under subdivision (c).
We disagree. In People v. Lewis (2021) 11 Cal.5th 952, at pages 970 to 972, our
Supreme Court recently held that the trial court may consider the record of conviction in
determining whether the petitioner has made a prima facie showing that they fall within
the provisions of section 1170.95. Our Supreme Court reasoned: “The record of
conviction will necessarily inform the trial court’s prima facie inquiry under section
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1170.95, allowing the court to distinguish petitions with potential merit from those that
are clearly meritless. This is consistent with the statute’s overall purpose: to ensure that
murder culpability is commensurate with a person’s actions, while also ensuring that
clearly meritless petitions can be efficiently addressed as part of a single-step prima facie
review process.” (Lewis, at p. 971.) Consistently with Lewis, we conclude that the trial
court properly considered the record of conviction, including instructions to the jury and
the jury’s verdicts, in concluding that defendant was ineligible for relief under section
1170.95 as a matter of law. Contrary to defendant’s argument in his reply brief, the court
review of the record did not require it to make a credibility determination, weigh the
evidence, or exercise discretion. Rather, the court determined as a matter of law that the
jury necessarily found defendant harbored an intent to kill, precluding him from relief. 3
DISPOSITION
The trial court’s order is affirmed.
/s/
Duarte, J.
We concur:
/s/
Raye, P. J.
/s/
Hoch, J.
3 Based on this holding, we do not address defendant’s arguments that relief under
section 1170.95 should extend to both murder and attempted murder convictions, or that
the trial court’s order prevented defendant from presenting new evidence at a hearing.
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