People v. Phothirath CA3 ( 2022 )

Filed 5/9/22 P. v. Phothirath CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C092316
Plaintiff and Respondent, (Super. Ct. No. 01F06798)
v.
OPINION ON TRANSFER
CHRISTOPHER PHOTHIRATH,
Defendant and Appellant.
Defendant Christopher Phothirath appeals the trial court’s denial of his petition for
resentencing under Penal Code section 1170.95, enacted as part of Senate Bill No. 1437
(2017-2018 Reg. Sess.).1 He contends his conviction for attempted murder as an aider
and abettor on a natural and probable consequences theory was eligible for relief under
section 1170.95, and the trial court erred in denying his petition as he made a prima facie
showing of eligibility. He also contends, and the People properly concede, that the
1 Undesignated statutory references are to the Penal Code.
1
sentence imposed is unauthorized under People v. Gonzalez (2009) 178 Cal.App.4th 1325(Gonzalez). In an unpublished opinion, we agreed the sentence was unauthorized and
remanded for resentencing; we affirmed the order denying defendant’s section 1170.95
petition, consistent with then prevailing case law that defendants convicted of attempted
murder were not eligible for resentencing under section 1170.95. (People v. Phothirath
(Oct. 20, 2021, C092316) [nonpub. opn.].) The Supreme Court granted review and
transferred the matter back to us with directions to vacate our decision and reconsider the
issue in light of Senate Bill No. 775 (2021-2022 Reg. Sess.).
Defendant submitted supplemental briefing arguing that the law now explicitly
applies to attempted murder convictions and the trial court improperly engaged in judicial
factfinding at the prima facie stage in concluding defendant could not have been
convicted under a natural and probable consequences theory; thus, the case must be
remanded because he stated a prima facie case for eligibility. The People submitted
supplemental briefing arguing the trial court correctly determined defendant was
ineligible for resentencing, as the jury did not rely on a natural and probable
consequences theory in finding him guilty of attempted murder. We agree with
defendant and will remand the case for further proceedings.
BACKGROUND
We take the facts from our opinion in the prior appeal, People v. Xabandith et al.
(July 5, 2005, C045950) [nonpub. opn.].2 “This is not a case of conflicting eyewitness
accounts. It is remarkable only for what no one saw. No one testified there was any
provocation for the beating or for the shooting. No one testified the victim threw gang
signs, ‘mad dogged’ the patrons at the bar, showed any disrespect to the ECC [El Camino
2 We incorporated the record in case No. C045950 by reference.
2
Crips], or challenged defendants to a fight. No one testified they saw who shot Chanthala
Banemanyvong. No one heard anyone yell out ‘ECC’ or claim gang affiliation.
“The witnesses did agree, however, on a general chronology of events leading up
to the shooting. Banemanyvong arrived at a bar on El Camino Avenue in Sacramento at
approximately 11:00 p.m. on August 11, 2001. Three friends, all of whom had been
drinking beer before they arrived at the bar, accompanied him. Banemanyvong sat down
at a table with a friend, Bounloth Chandara, who was also known as Loddi. Aware that a
group of Laotian men were giving him ‘mean look[s]’ and ‘mad-dogging’ him,
Banemanyvong decided to go outside to smoke a cigarette.
“Defendants followed him out of the bar. Holding what appeared to be either a
beer bottle or beer can, defendant Phothirath asked Banemanyvong where he was from or
what gang he was from. Banemanyvong responded that he was from Chico. Phothirath
then asked, ‘You know where you at?’ and Banemanyvong said he was on El Camino.
Phothirath threatened, ‘I'm going to shoot you.’ Loddi, who knew both defendants, tried
unsuccessfully to intervene and abort a confrontation. Phothirath hit Banemanyvong,
splitting open his chin. Loddi heard a bottle crack.
“Defendants both jumped Banemanyvong and began beating him. He ran around
a car in the parking lot, ducking and trying to get away, bleeding badly from his chin.
One of his friends tried to intervene but was stopped by one of the bystanders. During a
momentary break in the action, Loddi went inside the bar to use the bathroom and
Banemanyvong tried to collect himself by the front door of the bar.
“When Banemanyvong and his friend heard shots behind them, they ran across the
street to an open field. Bleeding profusely, Banemanyvong realized he had been shot.
He suffered two gunshot wounds, one in his abdomen and one in his back, had a total of
three surgeries, and had to wear a colostomy bag. He had a blood alcohol level of .196
percent.” (People v. Xabandith et al., supra, C045950 [pp. 2-3].)
3
In closing argument, after describing the law of aiding and abetting, the prosecutor
informed the jury that “there is another concept that falls within that category of aiding
and abetting, it’s called natural and probable consequences.” As to the attempted murder
charge, throughout closing argument, the prosecutor primarily argued defendant was
guilty of the attempted murder by virtue of the natural and probable consequences
doctrine; specifically, that the attempted murder flowed as a natural and probable result
of the target assault,3 and that both defendants intended a homicide when they confronted
Banemanyvong outside the bar. The prosecutor asserted the fight was a “gang beat-
down” and the question for the jury to resolve was whether that “gang beat-down”
naturally and probably resulted in an attempted murder. He argued defendant had
committed the target assault by means of force likely to inflict great bodily injury and
with a deadly weapon by hitting Banemanyvong with a bottle and codefendant Xabandith
had committed the target assault by continuing to punch and kick Banemanyvong. The
prosecutor argued both defendants had committed the target assault, and the concepts of
the natural and probable consequences doctrine and aiding and abetting made them both
liable for the entire assault and the attempted murder explaining: “Does a co-principal in
this target offense commit the offense of attempted murder? . . . That is all there is to
natural and probable consequences”; and, “When we talk about a [section] 245[,
subdivision] (a)(1) [offense] and we talk about our target offense, the way that we get to
liability on the shooting, which is . . . attempted murder, is through that concept of natural
and probable consequences.” He stated neither defendant could avoid liability for the
attempted murder as not being a natural and probable consequence of the target assault,
because they were both armed and fired shots. He informed the jury it did not matter
3 For ease of reference throughout this opinion we will refer to the charge in count 1,
assault with a deadly weapon or by means of force likely to cause great bodily injury
(§ 245, subd. (a)(1)), as the “target offense” or “target assault.”
4
who had the intent to kill, or who had actually fired the shots, because the natural and
probable consequences doctrine made both defendants guilty of the entire assault and
attempted murder. He also informed the jury it did not have to agree who had the
specific intent to kill, rather some of the jurors could find defendant guilty of attempted
murder under the natural and probable consequences theory and other jurors could find
he had his own specific intent to kill. The prosecutor also emphasized to the jury that the
easiest means of finding defendant guilty of attempted murder was through the natural
and probable consequences theory.
As to both defendants, the court instructed the jury with CALJIC No. 3.00,4
defining principals, CALJIC No. 3.01,5 defining direct aiding and abetting, and CALJIC
No. 3.02,6 defining the natural and probable consequences doctrine. The court also
4 CALJIC No. 3.00 as given provides: “Persons who are involved in committing or
attempting to commit a crime are referred to as principals in that crime. Each principal,
regardless of the extent or manner of participation, is equally guilty. Principals include:
[¶] 1. Those who directly and actively commit or attempt to commit an act constituting a
crime; or [¶] 2. Those who aid and abet the commission or attempted commission of the
crime.”
5 CALJIC No. 3.01 as given provides: “A person aids and abets the commission or
attempted commission of a crime when he or she, one, with the knowledge of the
unlawful purpose of the perpetrator; and, two, with the intent or purpose of committing or
encouraging or facilitating the commission of the crime; and, three, by act or advice aids,
promotes, encourages, or instigates the commission of the crime. [¶] A person who aids
and abets the commission or attempted commission of a crime need not be present at the
scene of a crime. [¶] Mere presence at the scene of the crime which does not itself assist
the commission of the crime does not amount to aiding or abetting. [¶] Mere knowledge
that a crime is being committed and the failure to prevent it does not amount to aiding
and abetting.”
6 CALJIC No. 3.02 as given provides: “One who aids and abets another in the
commission of a crime or crimes is . . . not only guilty of those crimes but is also guilty
of any other crime committed by a principal which is a natural and probable consequence
of the crimes originally aided and abetted. [¶] In order to find this defendant guilty of
the crime of attempted murder and\or 245A(2), assault with a firearm, as charged in
5
provided additional instruction on the elements of aider and abettor liability on the
natural and probable consequences theory “to clarify how the two instructions—three of
them, actually, blend together.”7
A jury found defendant guilty of committing three crimes against Banemanyvong:
assault with a deadly weapon or by means of force likely to cause great bodily injury
(§ 245, subd. (a)(1)—count one) with a true finding defendant personally inflicted great
Count Two and Three, you must be satisfied beyond a reasonable doubt that, one, the
crime or crimes of 245A(1) that are alleged in Count One, the assault with a bottle or
assault with force likely to produce great bodily injury, was or were committed; two, that
the defendant aided and abetted that or those crimes; three, that a co-principal in that
crime committed the crimes of attempted murder and\or assault with a firearm, 245A(2);
and, four, that the crime of attempted murder and assault with a firearm were a natural
and probable consequence of the commission of the crimes of assault with a weapon,
such as the bottle, or by means of force likely to produce great bodily injury. [¶] In
determining whether a consequence is natural and probable, you must apply an objective
test based not on what the defendant actually intended but on what a person of reasonable
and ordinary prudence would have expected likely to occur. The issue is to be decided in
light of all of the circumstances surrounding the incident. A natural consequence is one
which is within the normal range of outcomes that may be reasonably expected to occur
if nothing unusual has intervened. Probable means likely to happen. [¶] You are not
required to unanimously agree as to which originally contemplated crime the defendant
aided and abetted, so long as you are satisfied beyond a reasonable doubt and
unanimously agree that the defendant aided and abetted the commission of an identified
and defined target crime and that the crime of attempted murder and\or 245A(2), assault
with a firearm, was a natural and probable consequence of the commission of that [target]
crime.”
7 As given, that instruction stated: “The Court set out the elements of aider and abettor
liability on the natural and probable consequences theory. [¶] The trier of fact must find
that the defendant, acting with, one, knowledge of the unlawful purpose of the
perpetrator, and, two, with the intent or purpose of committing, encouraging, or
facilitating the commission of a target offense, in this case the 245A(1), assault with a
bottle or GBI, force likely to produce GBI; three, by act or advice, aided, promoted,
encouraged, or instigated the commission of that target crime, but the trier of fact must
also find that the defendant, number four; the defendant’s confederate committed an
offense other than the target crime; and, five, the offense committed by the confederate
was a natural and probable consequence of the target crime that the defendant aided and
abetted.”
6
bodily injury (§ 12022.7, subd. (a)), attempted murder (§§ 664, 187, subd. (a)—count
two) with a true finding defendant was a principal and a coprincipal personally and
intentionally discharged a firearm which caused great bodily injury or death (§ 12022.53,
subds. (b), (c), (d) & (e)), and assault with a firearm (§ 245, subd. (a)(2)—count three)
with a true finding defendant was armed with a firearm in the commission of the offense
(§ 12022, subd. (a)(1)). The jury also found true gang enhancements as to all three
counts (§ 186.22, subd. (b)(1)). The trial court sentenced defendant to 25 years to life
plus a determinate term of 14 years four months: the upper term of nine years for
attempted murder, plus 25 years to life for the firearm enhancement, a consecutive one-
year term for assault with a deadly weapon by force likely to cause great bodily injury,
plus three years four months for the gang enhancement (one-third the midterm), plus one
year for the great bodily injury enhancement; and, imposed and stayed under section 654
a three-year term for assault with a firearm, plus a one-year term on the firearm
enhancement, plus three years on the gang enhancement. On appeal, we affirmed
defendant’s conviction. (People v. Xabandith et al., supra, C045950.)
In 2019, defendant filed a section 1170.95 petition for resentencing. The trial
court appointed counsel and ordered briefing. The district attorney argued defendant had
not made a prima facie showing of eligibility, that Senate Bill No. 1437 did not apply to
attempted murder convictions, and that Senate Bill No. 1437 was unconstitutional.
Defendant argued that Senate Bill No. 1437 and section 1170.95 applied to attempted
murder convictions, Senate Bill No. 1437 was constitutional, and he had made a prima
facie showing of eligibility. The trial court noted the instructions given on aiding and
abetting and the natural and probable consequences doctrine and concluded, “the jury
must have applied CALJIC No. 3.02 only to codefendant Xabandith and not to defendant
Phothirath, as the instruction specifically applied only to the [section] 664/187 and 245[,
subdivision] (a)(2) offenses, indicated that the [section] 245[, subdivision] (a)(1) offense
was the target offense for those offenses, and required that the ‘defendant’ aided and
7
abetted the [section] 245[, subdivision] (a)(1) offense. Since the jury necessarily
determined that defendant Phothirath had personally committed the [section] 245[,
subdivision] (a)(1) assault with the bottle, having found true the attaching [section]
12022.7[, subdivision] (a) personal infliction of great bodily injury enhancement, the jury
necessarily determined that the natural and probable consequences doctrine applied only
to codefendant Xabandith and not to defendant Phothirath.” (Original underline.)
Relying on the recitation of the facts in our appellate opinion, and the jury instructions
given in the case, the trial court concluded defendant was not eligible for relief as he was
not convicted on a theory of either felony murder or the natural and probable
consequences doctrine.
DISCUSSION
I
Defendant contends the trial court erred in concluding he was ineligible for
resentencing without finding he had made a prima facie case, issuing an order to show
cause, and holding an evidentiary hearing. Underlying this claim is his argument that as
a person convicted as an aider and abettor on a theory of natural and probable
consequences, he can seek relief under section 1170.95. Defendant argues the trial court
erred in concluding he could not have been convicted of attempted murder based on the
natural and probable consequences doctrine. The People argue the changes to section
1170.95 do not entitle defendant to relief, as the jury instructions and verdicts indicate the
jury did not rely on a natural and probable consequences theory.
Senate Bill No. 1437 was enacted “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 the degrees of murder
8
to address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2, 3.) It also added new
section 1170.95, which provides a procedure by which those convicted of murder can
seek retroactive relief if the changes in the law would affect their previously sustained
convictions. (Stats. 2018, ch. 1015, § 4.)
Senate Bill No. 1437 changed section 188’s definition of malice for the crime of
murder. Under new section 188, subdivision (a)(3), “[m]alice shall not be imputed to a
person based solely on his or her participation in a crime.” It thus eliminated natural and
probable consequences liability for murder and limited the scope of the felony-murder
rule. (Stats. 2018, ch. 1015, §§ 2, 3.)
Section 1170.95, former subdivision (a) allowed 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 . . . . [¶] (3) The
petitioner could not be convicted of first or second degree murder because of changes to
Section 188 or 189 made effective January 1, 2019.” (Stats. 2018, ch. 1015, § 4.)
Senate Bill No. 775, which was signed into law October 5, 2021, amended section
1170.95 to, among other things, clarify that “persons who were convicted of attempted
murder or manslaughter under a theory of felony murder and the natural and probable
consequences doctrine are permitted the same relief as those persons convicted of murder
under the same theories.” (Stats. 2021, ch. 551, § 1, subd. (a).) Senate Bill No. 775 was
passed as nonurgency legislation during the regular session and became effective
January 1, 2022. (Cal. Const., art. IV, § 8, subd. (c)(1); see also People v. Camba (1996)
50 Cal.App.4th 857, 862.) The statute applies to acts predating its enactment as either an
9
ameliorative statute under In re Estrada (1965) 63 Cal.2d 740, 748 or a clarification of
law (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243; People v. Lee
(2018) 24 Cal.App.5th 50, 57). In either case, defendant is entitled to the benefit of the
new provisions to section 1170.95.
In addition to Senate Bill No. 775, People v. Lewis (2021) 11 Cal.5th 952 (Lewis)
held that once the court has appointed counsel and received briefing from the parties, it
may rely on the record of conviction, including a prior appellate court opinion, in
determining whether that single prima facie showing has been made. (Lewis, at pp. 970-
972.) Because the prima facie inquiry under subdivision (c) of section 1170.95 is limited
at this preliminary juncture, “a trial court should not engage in ‘factfinding involving the
weighing of evidence or the exercise of discretion.’ ” (Lewis, at p. 972, quoting People v.
Drayton (2020) 47 Cal.App.5th 965, 980 (Drayton).)
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 making a credibility determination adverse to the petitioner.” ’ ”
(Lewis, at p. 971; Drayton, at p. 979.)
The trial court considered the underlying record of conviction, including our prior
appellate opinion, and the jury instructions given, to assess defendant’s role in the
attempted murder and concluded he was not eligible for relief. This conclusion rested on
the trial court’s analysis that the jury must have concluded defendant was the only direct
perpetrator of the target assault, assault with a deadly weapon or by force likely to
produce great bodily injury; and therefore, defendant could not have been an aider and
abettor of the target offense. The court’s reasoning continues that if defendant could not
10
have been an aider and abettor of the target offense, he could not have been convicted
under a natural and probable consequences theory.
The flaw in the court’s reasoning is that it rests on the presumption that a principal
in a target offense may act only as an actual perpetrator or an aider and abettor. As
defendant notes, our Supreme Court has rejected such a clear dividing line between the
actual perpetrator and an aider and abettor. “It is often an oversimplification to describe
one person as the actual perpetrator and the other as the aider and abettor. When two or
more persons commit a crime together, both may act in part as the actual perpetrator and
in part as the aider and abettor of the other, who also acts in part as an actual perpetrator.”
(People v. McCoy (2001) 25 Cal.4th 1111, 1120.) Thus, although the codefendant was
liable for defendant’s actions as an aider and abettor, he was an actor too. (Ibid.) In
addition, following the court’s reasoning to its logical conclusion would mean under the
instructions given, defendant as the perpetrator of the target offense could avoid liability
for the natural and probable consequences of his crime, attempted murder, if he was not
the actual perpetrator of that offense. This is essentially the argument rejected in People
v. Olguin (1994) 31 Cal.App.4th 1355, where the court made clear the law of liability for
natural and probable consequences was that the “perpetrator of an assault and an aider
and abettor are equally liable for the natural and foreseeable consequences of their crime.
Both the perpetrator and the aider and abettor are principals, and all principals are liable
for the natural and reasonably foreseeable consequences of their crimes.” (Olguin, at
p. 1376.)
That the jury found defendant personally assaulted Banemanyvong with the bottle,
does not preclude the possibility that the jury also found codefendant Xabandith directly
and actively committed the target offense by beating, punching, and kicking
Banemanyvong. Nor does it preclude the possibility that defendant aided and abetted
codefendant Xabandith in this continuing target assault. This is particularly true in light
of the prosecutor’s closing argument which emphasized that both defendants perpetrated
11
the target offense and were each guilty of the attempted murder under the natural and
probable consequences doctrine.
We cannot conclude on this record that defendant is necessarily ineligible for
relief under section 1170.95. The record does not establish which theory of guilt the jury
adopted as to the attempted murder, or whether the jurors were even unanimous in that
theory of guilt. Thus, the record does not preclude the possibility that the jury found
defendant guilty on a theory that does not comport with the malice requirements under
sections 188 and 189. Accordingly, we reverse and remand the matter to the trial court to
conduct further proceedings in accordance with the terms of section 1170.95.
II
Relying on Gonzalez, supra, 178 Cal.App.4th 1325, defendant contends the trial
court improperly imposed sentence on two great bodily injury enhancements on the same
victim in the commission of a single offense. The People properly concede this issue and
that the matter must be remanded for resentencing.
Gonzalez relied on the Supreme Court’s holding in People v. Rodriguez (2009)
47 Cal.4th 501, interpreting section 1170.1, subdivision (f), to interpret section 1170.1,
subdivision (g). Gonzalez held the defendant could not be sentenced for both a great
bodily injury and gang enhancement against the same victim in a single offense, since the
elevated term for the gang enhancement was imposed because he committed a “violent”
felony, and the assault charge was only a “violent” felony because of the infliction of
great bodily injury, based on the applicable statutory definitions. Instead, the trial court
“should have imposed only the greatest of those enhancements as required by section
1170.1, subdivision (g).” (Gonzalez, supra, 178 Cal.App.4th at pp. 1331, 1332.)
Here, as in Gonzalez, defendant’s infliction of great bodily injury had two
consequences: He received a three-year term for the great bodily injury enhancement for
count one; and it turned count one’s assault offense into a violent felony as defined by
section 667.5, subdivision (c)(8), which qualified defendant for the 10-year gang
12
enhancement for the commission of a violent felony under section 186.22, subdivision
(b)(1)(C). (Gonzalez, supra, 178 Cal.App.4th at pp. 1329-1330.)
However, section 1170.1, subdivision (g) prohibits the imposition of more than
one enhancement “for the infliction of great bodily injury on the same victim in the
commission of a single offense . . . .” As in Gonzalez, defendant’s infliction of great
bodily injury on the victim in count one subjected him to an enhancement under section
12022.7, subdivision (a), and the same infliction of great bodily injury on the same victim
also turned defendant’s underlying assault offense into a “violent felony” under section
667.5, which subjected him to an enhancement under section 186.22, subdivision
(b)(1)(C). “In other words, the trial court imposed two enhancements for [defendant’s]
infliction of great bodily injury on the same victim in the commission of a single
offense.” (Gonzalez, supra, 178 Cal.App.4th at p. 1332.) Accordingly, the matter must
be remanded for resentencing on the enhancements for count one, consistent with section
1170.1, subdivision (g) and Gonzalez.
DISPOSITION
The trial court’s order denying defendant’s petition for resentencing under section
1170.95 is reversed. The matter is remanded with directions to issue an order to show
cause and hold a hearing under section 1170.95, subdivision (d). In addition, the matter
is remanded to the trial court for resentencing as the sentence imposed is unauthorized
under Gonzalez, supra, 178 Cal.App.4th 1325.
/s/
RAYE, P. J.
We concur:
/s/
HOCH, J.
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/s/
EARL, J.
14