People v. Ting CA2/2 ( 2021 )

Filed 12/22/21 P. v. Ting CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B311125
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA253204)
v.
SUNNY HSIAO SHIN TING,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura F. Priver, Judge. Affirmed.
Brad Kaiserman, 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, Idan Ivri and Michael Katz, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant and appellant Sunny Hsiao Shin Ting
(defendant) appeals from the summary denial of his petition for
vacatur and resentencing pursuant to Penal Code section
1170.95.1 He contends that the trial court erred in denying the
petition without first appointing counsel and permitting briefing.
We agree there was error but find it harmless and affirm the
order.
BACKGROUND
In 2007, defendant was convicted of first degree murder
and first degree robbery. The jury found true that the murder
was committed during the commission of a robbery within the
meaning of section 190.2, subdivision (a)(17). The jury also found
true several firearm enhancement allegations, including that
defendant personally used a firearm within the meaning of
section 12022.5, subdivision (a). The trial court sentenced
defendant to life in prison without the possibility of parole, plus
four years. In 2009, we reversed the robbery conviction and
remanded for a finding regarding the statute of limitations, but
otherwise affirmed the judgment in People v. Ting (Sept. 15,
2009, B209911) (nonpub. opn.) (Ting I).2
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2 We have granted defendant’s request to take judicial notice
of the appellate record in that appeal. The result on remand is
not included in the record but that does not affect the issues
presented here.
2
The evidence at trial summarized in Ting I shows that in
August 1992, when defendant was the leader of the Wah Ching
gang, he and another gang member (Kenny) tried to carjack an
unlicensed taxi driven by victim Lee, who was using his own car.
Defendant struggled with Lee while in the front passenger seat.
When Lee fought back defendant accidentally shot himself in the
leg. Kenny then shot Lee in the back of the head from the rear
seat. A witness saw defendant get out of the car with a gun
dangling from his finger. Kenny pulled Lee’s body out of the car
and drove defendant home in Lee’s car. (Ting I, supra, B209911.)
Defendant’s girlfriend took him to the hospital where he
was treated for his gunshot wound. Defendant told the police
and hospital staff that he had been robbed and shot while sitting
in the passenger side of his girlfriend’s car. Police officers
inspected her car but found no blood. The next day Sheriff’s
deputies found Lee’s burning car with a nine-millimeter shell
casing on the rear floorboard. Two former members of
defendant’s gang told police that defendant had told them that
while he and Kenny were trying to carjack Lee, defendant
accidentally shot himself with his own gun when Lee fought back.
Kenny then shot Lee in the back of the head. One of the former
gang members testified that defendant said he got shot while he
and Kenny were trying to get a car to use for robberies. (Ting I,
supra, B209911.)
A member of defendant’s gang (Yu) testified that after he,
defendant, Kenny, and three other gang members met at
defendant’s apartment to plan a jewelry store robbery, defendant
and Kenny left to get a car to use in the robbery. Both were
armed with handguns. Two or three hours later they returned,
and both told Yu that Kenny had accidentally shot defendant. At
3
the hospital defendant told Yu that Kenny had pulled a gun on
Lee, and during the ensuing struggle Kenny shot defendant in
the leg. Kenny then shot Lee in the head. (Ting I, supra,
B209911.)
Defendant testified that he did not carjack Lee or intend to
steal a car to commit robberies. Rather that he sold guns to
Korean store owners, and when Kenny told defendant that he
owed Lee money and Lee was interested in buying guns, Kenny
arranged a meeting among the three of them. The meeting took
place in Lee’s car with defendant in the front passenger seat and
Kenny in the rear. Defendant denied having a gun. Lee and
Kenny spoke in Korean, which defendant did not understand.
When the two men began arguing, Lee stopped the car and pulled
out a gun. Defendant grabbed the barrel of the gun, struggled
with Lee, and the gun went off, hitting defendant in the leg.
Defendant then heard a shot and saw Lee slumped over the
steering wheel. He realized that Kenny had shot Lee. He picked
up Lee’s gun by his fingertips so he would not get fingerprints on
it. Kenny pulled Lee’s body out of the car, drove defendant home
in Lee’s car, and defendant’s girlfriend drove him to the hospital.
(Ting I, supra, B209911.)
Lee’s wife testified that Lee had never owned a gun, that
she did not recognize Kenny by his photograph, and that Lee had
not lent money to Kenny. (Ting I, supra, B209911.)
In January 2021, defendant filed a petition for resentencing
in the trial court pursuant to section 1170.95. On February 1,
2021, the trial court summarily denied the petition based solely
upon its review of the record of conviction including the appellate
opinion in Ting I. The court found that defendant did not qualify
for relief under section 1170.95 because the recently amended
4
section 189, subdivision (e) did not change the law relating to
actual killers or direct aiders and abettors, and because the true
finding on the robbery-murder special circumstance showed that
the jury believed defendant harbored direct or implied malice.
The trial court also found from its review of the facts summarized
in the appellate opinion that defendant was a major participant
and direct aider and abettor.
Defendant filed a timely notice of appeal from the order.
DISCUSSION
Defendant contends that the trial court erred in summarily
denying his petition, arguing that the court should not have
looked to the record of conviction to determine whether he had
made a prima facie showing, but instead have determined the
issue solely from the allegations of his section 1170.95 petition,
which were facially sufficient. The court also should have
appointed counsel. Defendant further contends that the
summary denial must be reversed because the trial court
erroneously made findings of fact based on the record of
conviction without issuing an order to show cause.
After defendant’s conviction, Senate Bill No. 1437 amended
the laws pertaining to felony murder or murder under the
natural and probable consequences doctrine, “‘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).)”
(People v. Gentile (2020) 10 Cal.5th 830, 842.) Senate Bill
No. 1437 also enacted section 1170.95, which gives defendants
previously convicted of murder under those theories a procedure
5
to obtain vacatur and resentencing under the following
conditions: (1) “[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) he “was convicted of first
degree or second degree murder following a trial,” and (3) he
“could not be convicted of first or second degree murder because
of changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1170.95, subd. (a).)
Upon the filing of a petition alleging all the enumerated
conditions for relief under section 1170.95, the statute requires
the trial court to take the allegations as true, appoint counsel if
requested, and entertain briefing, regardless of whether the
record of conviction demonstrates that the defendant is not
entitled to relief. (People v. Lewis (2021) 11 Cal.5th 952, 957,
962-963, 971-972 (Lewis); see § 1170.95, subds. (b), (c).) After the
appointment of counsel and considering the parties’ briefs, the
court may review the record of conviction to determine the truth
of the allegations of the petition and to aid the court in assessing
whether a petitioner has made a prima facie showing. (Lewis, at
pp. 957, 972.) If not, the petition may be summarily denied. If
so, the court must issue an order to show cause and schedule a
hearing. (Ibid.) At the show cause hearing the prosecution bears
the burden of proving beyond a reasonable doubt that the
petitioner is ineligible for section 1170.95 relief. (§ 1170.95, subd.
(d)(1) & (3).)
Defendant’s petition set forth the required averments and
included a request for the appointment of counsel. The petition
was thus facially compliant, and it should not have been
summarily denied. (See Lewis, supra, 11 Cal.5th at pp. 957, 960-
6
961.) Further, if the court engaged in factfinding, it should not
have done so. “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.)3
Error in denying a facially sufficient petition without the
appointment of counsel and the opportunity for briefing is tested
for prejudice under the standard of People v. Watson (1956) 46
Cal.2d 818, 836 (Watson). (Lewis, supra, 11 Cal.5th at pp. 957-
958.) Under that test, it is defendant’s “burden to demonstrate a
reasonable probability that ‘his petition would not have been
summarily denied without an evidentiary hearing’ had the trial
court appointed counsel for him.” (People v. Daniel (2020) 57
Cal.App.5th 666, 678.) Defendant acknowledges that under that
standard he must demonstrate a reasonable probability that if he
had been afforded assistance of counsel the trial court would have
issued an order to show cause. (See Lewis, at pp. 974-975.)4
3 Citing People v. Fortman (2021) 64 Cal.App.5th 217, review
granted July 21, 2021, S269228, and People v. Duke (Sept. 28,
2020, B300430) (opn. ordered nonpub. Nov. 23, 2021), defendant
argues not only that the trial court should not have engaged in
factfinding, but in doing so erred by applying the wrong standard.
We agree with the People that the standard under which the trial
court may have erroneously engaged in factfinding is irrelevant.
4 Defendant disagrees with Lewis and argues that the test of
prejudice should be that for federal constitutional error as set
forth in Chapman v. California (1967) 386 U.S. 18, 24. However,
citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455, defendant recognizes that Lewis is binding on this
court. Not only is Lewis binding, but we agree with its holding.
7
Once counsel has been appointed and has had the opportunity to
file a brief, it is then appropriate for the trial court to review the
record of conviction to assist it in assessing whether defendant
has made a prima facie showing of eligibility under section
1170.95. (Lewis, supra, at pp. 957, 971-972.) Thus, it is
defendant’s burden to show a reasonable probability that he
would have demonstrated a prima facie showing of eligibility for
relief under the statute.
Section 190.2, subdivision (d) provides that an aider and
abettor of a felony in subdivision (a)(17) of that statute (including
robbery) that results in the death of a person shall be punished
by death or life imprisonment without the possibility of parole if
the aider and abettor acted with reckless indifference to human
life and as a major participant in the felony. These requirements
of section 190.2 were not enacted as an amendment under Senate
Bill No. 1437, but first appeared in Proposition 115, approved
June 5, 1990, and effective June 6, 1990, long before defendant’s
jury convicted him and found true the section 190.2 special
circumstance. Senate Bill No. 1437 amended section 189 by
adding elements to the crime of felony murder identical to the
existing requirements for finding true a section 190.2 felony-
murder special circumstance. The amendment did not change
the elements of the felony-murder special circumstance, and the
jury’s true finding shows that defendant acted as a major
The procedure the trial court was required to follow was purely
statutory, and the applicable standard for state procedural error
is the Watson standard. (See People v. Golston (1986) 188
Cal.App.3d 346, 354, citing Chapman v. California, at p. 21.)
8
participant in the felony with reckless disregard for human life.
It cannot now be said that defendant could not be convicted of
murder “because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a)(3).) Defendant is thus
unable as a matter of law to make a prima facie showing of
eligibility for relief under the amended statutes. (See People v.
Nunez (2020) 57 Cal.App.5th 78, 82 (Nunez), review granted
Jan. 13, 2021, S265918.)
Defendant asserts that he was prejudiced because
appointed counsel could have been able to make a prima facie
showing with a comprehensive analysis of this case in relation to
the decisions of the California Supreme Court in People v. Banks
(2015) 61 Cal.4th 788 (Banks), and People v. Clark (2016) 63
Cal.4th 522 (Clark), which were published after he was convicted,
and which clarified the factors the jury should consider in
determining reckless indifference. Then, defendant argues, there
would be a reasonable probability that after a full hearing and
consideration of argument from counsel the trial court would find
he did not act with reckless disregard.
We have previously held that a jury’s findings that the
defendant was a major participant who acted with reckless
disregard for human life may not be relitigated in a section
1170.95 proceeding. (Nunez, supra, 57 Cal.App.5th at pp. 82-84,
review granted.) We have agreed with other appellate courts
that a section 1170.95 petition is not the vehicle for a person
convicted prior to Banks, supra, 61 Cal.4th 788 and Clark, supra,
63 Cal.4th 522 to challenge a felony-murder special circumstance,
which must first be challenged by way of habeas corpus or other
available collateral attack. (Nunez, supra, at p. 83, citing People
v. Allison (2020) 55 Cal.App.5th 449, 458, 461, People v. Murillo
9
(2020) 54 Cal.App.5th 160, 168, review granted Nov. 18, 2020,
S264978, People v. Galvan (2020) 52 Cal.App.5th 1134, 1142,
review granted Oct. 14, 2020, S264284, and People v. Gomez
(2020) 52 Cal.App.5th 1, 16-17, review granted Oct. 14, 2020,
S264033; accord, People v. Simmons (2021) 65 Cal.App.5th 739,
746-750, review granted Sept. 1, 2021, S270048; People v. Jones
(2020) 56 Cal.App.5th 474, 479-482, review granted Jan. 27,
2021, S265854.)
Defendant asks that we reconsider our decision in Nunez,
review granted, and points out that the authority on this issue is
split, with some courts taking the view that those convicted prior
to the Banks and Clark decisions may challenge a felony-murder
special circumstance in a section 1170.95 proceeding. (See, e.g.,
People v. Arias (2021) 66 Cal.App.5th 987, 1004, review granted
Sept. 29, 2021, S270555; People v. Gonzalez (2021) 65
Cal.App.5th 420, 425, review granted Aug. 18, 2021, S269792;
People v. Harris (2021) 60 Cal.App.5th 939, 956-958, review
granted Apr. 28, 2021, S267802; People v. York (2020) 54
Cal.App.5th 250, 259-261, review granted Nov. 18, 2020,
S264954; People v. Smith (2020) 49 Cal.App.5th 85, 93-94, review
granted July 22, 2020, S262835; People v. Torres (2020) 46
Cal.App.5th 1168, 1179-1180, review granted June 24, 2020,
S262011.) Resolution of the issue is now before the California
Supreme Court in People v. Strong (Dec. 18, 2020, C091162)
(nonpub. opn.), review granted March 10, 2021, S266606.
Defendant asserts that Banks and Clark effected a change
in the law and thus the definitions of “major participant” and
“reckless indifference to human life” have changed since his
conviction. Quoting People v. Torres, supra, 46 Cal.App.5th at
pages 1179-1180, review granted, defendant argues that the
10
change in law occurred because “Banks and Clark construed the
terms ‘major participant’ and ‘reckless indifference to human life,’
as set forth in section 190.2, subdivision (d), ‘in a significantly
different, and narrower manner than courts had previously
construed the statute.’”
We do not agree that Banks and Clark stated a new rule of
law or changed the definitions of “major participant” and
“reckless indifference to human life.” As we explained in Nunez,
“the high court in those cases ‘merely clarified the “major
participant” and “reckless indifference to human life” principles
that existed when defendant’s conviction became final.’” (Nunez,
supra, 57 Cal.App.5th at p. 92, review granted.) Further, “our
Supreme Court has not required that juries be instructed on the
clarifications . . . and ‘Clark “did not hold that the court has a sua
sponte duty to instruct on those [Banks] factors.”’” (Id. at pp. 92-
93, citations omitted and quoting People v. Allison, supra, 55
Cal.App.5th at pp. 458-459.)
As section 1170.95 applies to those who could not have been
convicted of murder under the amended murder statutes and
does not mention judicial clarification, we decline defendant’s
invitation to reconsider our decision in Nunez. Moreover, even if
we agreed with those cases, which hold that a pre-Banks and
Clark special circumstance finding under section 190.2,
subdivision (a)(17) would not preclude defendant from making a
prima facie showing, defendant does not demonstrate a
reasonable probability that counsel could have done so.
Some courts hold it is error to deny a section 1170.95
petition solely on the basis of the pre-Banks and Clark felony-
murder special circumstance, and that the reviewing court may
independently review the appellate record to determine whether
11
defendant can make a prima facie showing, if the record is
adequate. (People v. Secrease (2021) 63 Cal.App.5th 231, 236,
247, 255, review granted June 30, 2021, S268862; People v. Law
(2020) 48 Cal.App.5th 811, 822, 825-826, review granted July 8,
2020, S262490; see People v. Pineda (2021) 66 Cal.App.5th 792,
795-796, review granted Sept. 29, 2021, S270513.) Such a review
may also be undertaken to determine prejudice due to an
erroneous denial of the petition; and if the special circumstance
finding was supported by substantial evidence, the error is
harmless. (See People v. Law, at pp. 825-826.)
Defendant contends that the prejudice in this case is
demonstrated by the error itself: the absence of counsel and a
full hearing to argue why the special circumstance finding does
not preclude relief as a matter of law. And he argues that a
review of the evidence by this court would amount to prohibited
factfinding and weighing the evidence. We disagree. We would
not be making our own determination that defendant did or did
not act with reckless indifference, as defendant suggests. We
review the record of conviction solely to determine whether
substantial evidence supports the jury’s true finding. (See People
v. Secrease, supra, 63 Cal.App.5th at p. 255, review granted;
People v. Law, supra, 48 Cal.App.5th at pp. 825-826, review
granted.) We find the factual summary of the appellate opinion
in Ting I adequate to undertake such a harmless error analysis.
In Banks, the California Supreme Court explained that a
“major participant” in a robbery is someone whose “personal
involvement” is “substantial” (Banks, supra, 61 Cal.4th at p. 802);
and such a participant “need not be the ringleader” (People v.
Williams (2015) 61 Cal.4th 1244, 1281), but his involvement must
be “greater than the actions of an ordinary aider and abettor”
12
(Banks, at p. 802). A defendant acts with reckless indifference to
human life when he “‘“knowingly engag[es] in criminal activities
known to carry a grave risk of death.”’” (Id. at p. 801, quoting
People v. Estrada (1995) 11 Cal.4th 568, 577, quoting Tison v.
Arizona (1987) 481 U.S. 137, 157.) This standard “has a
subjective and an objective” component. (In re Scoggins (2020) 9
Cal.5th 667, 677 (Scoggins).) To satisfy the subjective
component, “‘[t]he defendant must be aware of and willingly
involved in the violent manner in which the [underlying felony] is
committed,’ and . . . must consciously disregard ‘the significant
risk of death his or her actions create.’” (Ibid., quoting Banks, at
p. 801.) The key is whether the defendant evinces “a willingness
to kill (or to assist another in killing) to achieve a distinct aim,
even if the defendant does not specifically desire that death as
the outcome of his actions.” (Clark, supra, 63 Cal.4th at p. 617.)
To satisfy the objective component, the risk of death “‘“must be of
such a nature and degree that, considering the nature and
purpose of the [defendant’s] conduct and the circumstances
known to him . . . , its disregard involves a gross deviation from
the standard of conduct that a law-abiding person would observe
in the [defendant’s] situation.”’” (Scoggins, at p. 677, quoting
Clark, at p. 617.)
Banks and Clark held that the totality of the circumstances
should be examined when evaluating the extent of participation
and suggested several relevant but not dispositive factors to
consider: (1) “Did the defendant use or know that a gun would be
used during the [underlying] felony,” and “[h]ow many weapons
were ultimately used?”; (2) “Was the defendant physically present
at the crime,” such that he had “the opportunity to restrain the
crime or aid the victim?”; (3) “What was the duration of the
13
interaction between the perpetrators of the [underlying] felony
and the victims?”; (4) “What was the defendant’s knowledge of
his . . . confederate’s propensity for violence or likelihood of using
lethal force?”; and (5) “What efforts did the defendant make to
minimize the risks of violence during the felony?” (Scoggins,
supra, 9 Cal.5th at p. 677, citing Clark, supra, 63 Cal.4th at
pp. 618-623; see Banks, supra, 61 Cal.4th at p. 803; Clark, supra,
at p. 611.)
The appellate opinion in this case sets forth substantial
evidence that supports the jury’s finding that defendant was a
major participant who acted with reckless indifference to life
when reviewed under the clarifying factors suggested in Banks
and Clark. The evidence summarized in the opinion shows that
defendant had a major role in planning the crime and was a
major participant in its commission. He was the leader of his
gang and met with Kenny and four other members of the gang to
plan a robbery and then left with Kenny “to get a car” to use in
the robbery. Defendant and Kenny were both armed with
handguns, and as others present for the planning of the robbery
knew they were both armed, it is reasonable to infer that
defendant knew Kenny was armed. Defendant, who sold guns to
store owners, was no doubt familiar with guns and the danger
they posed, yet he entered Lee’s car intending to commit an
armed carjacking. It does not appear that defendant made any
effort to minimize the risks of violence during the felony as he
physically struggled with Lee in close quarters while armed, with
14
his armed accomplice within two or three feet.5 If Kenny’s violent
reaction to the accidental shooting of defendant was too quick to
allow defendant to prevent the murder, he still could have come
to the victim’s aid as he could still walk and move about, but he
did not. Instead, after Kenny removed Lee’s body, defendant got
into the car and went home.
Defendant asserts that “there was nothing in the plan of
the carjacking that pointed to an elevated risk to human life
beyond those risks inherent in any armed carjacking.” In
addition, citing the discussion in Clark, supra, 63 Cal.4th at page
620 of some of the factors indicating reckless indifference as they
related to the defendant in that case, defendant argues that the
evidence in this case was insufficient because the encounter with
Lee was not of long duration, there was no evidence that
defendant knew Kenny was armed or knew of his propensity for
violence, defendant had no opportunity to interfere because
Kenny fired quickly in response to defendant’s accidentally
shooting himself, and the mere fact of being armed and knowing
Kenny was armed does not prove reckless indifference.
Defendant asserts that his crime was comparable to the “garden-
variety armed robbery” as the expression was used in Banks,
supra, 61 Cal.4th at page 802 and Clark, supra, 63 Cal.4th at
page 617, footnote 74. Defendant concludes that this was a
“garden-variety armed carjacking.”
5 Defendant asserts that because witnesses heard arguing
prior to the gunfire, this “indicates that efforts were made to
complete the carjacking without resorting to violence.”
Defendant points to no evidence of who was arguing or what the
argument was about. Defendant’s assertion is speculative.
15
As our high court explained in Banks, the expression
“garden-variety armed robbery” meant one where death might be
possible but not probable, not one where the defendant was
“actively involved in every element of the [crime]” or “physically
present during the entire sequence of criminal activity
culminating in the murder. . . .” (Banks, supra, 61 Cal.4th at
p. 802, comparing Tison v. Arizona, supra, 481 U.S. 137 with
Enmund v. Florida (1982) 458 U.S. 782.) In Clark, the court
explained that “a robbery in which the only factor supporting
reckless indifference to human life is the fact of the use of a gun
is what we meant by ‘a garden-variety armed robbery’ in
Banks . . . .” (Clark, supra, 63 Cal.4th at p. 617, fn. 74.) Here
defendant did not merely use a gun.
The evidence summarized in the opinion does not support
two of the factors cited by defendant: the crime was not of long
duration and the evidence did not show that defendant knew of
Kenny’s propensity for violence. This, however, does not show
that the jury’s finding is unsupported by substantial evidence as
not all factors must be established. (See Banks, supra, 61 Cal.4th
at p. 803.) “‘[N]o one of these considerations is necessary, nor is
any one of them necessarily sufficient.’” (Clark, supra, 63 Cal.4th
at p. 618, quoting Banks, supra, at p. 803.) What matters is the
totality of the considerations. (Scoggins, supra, 9 Cal.5th at
p. 677.) It follows that substantial evidence is not lacking simply
because the evidence did not support every one of the suggested
factors. Here, the totality of the circumstances shows that
defendant was armed, knew his accomplice was armed, and was
present and active “‘during the entire sequence of criminal
activity culminating in the murder.’” (Banks, supra, at p. 802.)
16
Defendant’s arguments appear to suggest that we should
find prejudice only if we independently determine beyond a
reasonable doubt that he acted with reckless disregard for life.
However, that is a determination for the trial court only after
defendant makes a prima facie showing of eligibility. Here, the
special circumstance finding precludes that showing as a matter
of law. (Nunez, supra, 57 Cal.App.5th at p. 82, review granted.)
“If as a matter of law the record of conviction shows [as here] that
the defendant was a major participant who acted with reckless
indifference to human life, and the defendant does not claim he
has new evidence to present, he has not made a prima facie case.”
(People v. Murillo, supra, 54 Cal.App.5th at p. 173, review
granted.) As defendant does not claim to have any new evidence
on this issue, he has failed to demonstrate a reasonable
probability that he would be able to make a prima facie showing
of eligibility under the guidelines of Banks and Clark.
Defendant’s remedy is to first challenge the special
circumstance finding by way of a petition for writ of habeas
corpus, and if successful, to petition on that basis for section
1170.95 relief.6 Until then, the special circumstance stands, and
it demonstrates that because defendant cannot make a prima
facie showing of eligibility under the statute, there is no
6 As the People note defendant filed a petition for writ of
habeas corpus in this court in In re Ting (B296745), challenging
the special circumstance finding, which we summarily denied on
February 11, 2021. “[T]he summary denial of a habeas corpus
petition does not establish law of the case and does not have a res
judicata effect in future proceedings.” (Gomez v. Superior Court
(2012) 54 Cal.4th 293, 305, fn. 6.)
17
reasonable probability of a different result. We conclude that any
error in summarily denying the petition is harmless.
DISPOSITION
The order denying the petition is affirmed.
___________________________
CHAVEZ, J.
I concur:
_______________________________
HOFFSTADT, J.
18
People v. Ting, B311125
ASHMANN-GERST, J., Concurring in the judgment.
I agree with the majority that the trial court properly
denied defendant Sunny Hsiao Shin Ting’s petition for
resentencing under Penal Code section 1170.95.1 In finding the
special circumstance (§ 190.2, subd. (a)(17)) true, the jury
necessarily found either that defendant was an aider and abettor
who harbored an intent to kill or a major participant who acted
with reckless indifference to human life, findings that would
make him guilty of murder under the amended law. (See §§ 189,
subd. (e)(3), 1170.95, subd. (a).) Either finding makes defendant
ineligible as a matter of law. (People v. Farfan (2021) 2021
Cal.App.LEXIS 973, *16 (Ct. App., Second Dist., Div. Two) [“the
jury’s true finding on the special circumstance establishes
appellant is ineligible for section 1170.95 relief as a matter of
law”]; People v. Jones (2020) 56 Cal.App.5th 474, 482, review
granted Jan. 27, 2021, S265854; People v. Allison (2020) 55
Cal.App.5th 449, 457; People v. Gomez (2020) 52 Cal.App.5th 1,
14–17, review granted Oct. 14, 2020, S264033; People v. Galvan
(2020) 52 Cal.App.5th 1134, 1141–1143, review granted Oct. 14,
2020, S264284; but see People v. Torres (2020) 46 Cal.App.5th
1168, 1179–1180, review granted June 24, 2020, S262011; People
v. Smith (2020) 49 Cal.App.5th 85, 93–94, review granted July
22, 2020, S262835; People v. York (2020) 54 Cal.App.5th 250,
258–263, review granted Nov. 18, 2020, S264954; People v. Harris
(2021) 60 Cal.App.5th 939, 956–958, review granted Apr. 28,
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2021, S267802; People v. Secrease (2021) 63 Cal.App.5th 231, 236,
247, review granted June 30, 2021, S268862.)
And, the jury’s special circumstance finding is supported by
substantial evidence through the prism of People v. Banks (2015)
61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522(Clark). (People v. Secrease, supra, 63 Cal.App.5th at p. 255.) In
assessing whether substantial evidence supports a finding, we
view the record in the light most favorable to that finding.
(People v. Albillar (2010) 51 Cal.4th 47, 60.) That evaluation
leads to the conclusion that the jury’s finding must stand—
defendant was either a major participant who acted with reckless
indifference to human life or an aider and abettor who harbored
intent to kill.
As summarized in our prior opinion, defendant was an
active participant in the crime. He and another gang member,
Kenny Lee (Kenny) tried to carjack an unlicensed taxi driven by
the victim, In Jik Lee (Lee). Defendant was in the taxi when
Kenny shot and killed Lee. A witness saw defendant exit the car
with a gun dangling from his finger. Two former members of
defendant’s gang told police that defendant had told them that he
and Kenny were trying to carjack the victim, and that Kenny
shot and killed Lee. (People v. Ting (Sept. 15, 2009, B209911)
[nonpub. opn.], at pp. 2–5.) This evidence overwhelmingly
demonstrates, even under the heightened standard set forth in
Banks and Clark, that defendant was either an aider and abettor
who acted with intent to kill or a major participant in the crimes
who acted with reckless indifference to human life. Thus, relief
under section 1170.95 is unavailable as a matter of law.
Pursuant to my concurring opinion in People v.
Nunez (2020) 57 Cal.App.5th 78, 97–99, review granted
2
January 13, 2021, S265918, I do not join in the majority’s
conclusion that the jury’s finding “must first be challenged by
way of habeas corpus or other available collateral attack.”
(Maj. Opn., at p. 9.)
______________________________
ASHMANN-GERST, Acting P.J.
3