People v. Souvannavong CA4/1 ( 2023 )

Filed 8/8/23 P. v. Souvannavong 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, D081511
Plaintiff and Respondent,
v. (Super. Ct. No. SCD165933)
MICHAEL JAMES SOUVANNAVONG,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
John M. Thompson, Judge. Reversed; remanded with directions.
Laura Vavakin, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
A. Natasha Cortina, Alan L. Amann, and Lynne G. McGinnis, Deputy
Attorneys General, for Plaintiff and Respondent.
Michael James Souvannavong appeals a postjudgment order denying
his petition for resentencing under Penal Code1 section 1172.6.2
In 2003, the trial court, after a bench trial, convicted Souvannavong of
second degree murder (§ 187, subd. (a)) of a rival gang member for the benefit
of a criminal street gang (§ 186.22, subd. (b)(1)). Souvannavong filed a
resentencing petition in 2022 pursuant to section 1172.6. The trial court
denied the petition finding that Souvannavong had not established a prima
facie showing of eligibility under section 1172.6 because he was the actual
killer. We conclude there was no portion of the record of conviction before the
court that allowed it to determine Souvannavong was the actual killer as a
matter of law. Accordingly, we reverse the order.
FACTUAL AND PROCEDURE BACKGROUND3
On October 28, 2000, a fight between two gangs, the Oriental Killer
Boyz (O.K.B.) and the Cripville Crip (C.V.C.), broke out at a 15-year-old girl’s
party. During the fight, a member of O.K.B stabbed a member of C.V.C. to
death. Approximately one year later, the police contacted Souvannavong, a
documented member of O.K.B., based on information received from other
participants in the fight. Souvannavong agreed to an interview at a police
station. During the interview, Souvannavong’s story changed. Initially, he
1 Statutory references are to the Penal Code unless otherwise specified.
2 Assembly Bill No. 200 (Stats. 2022, ch. 58, § 10) renumbered section
1170.95 to 1172.6, effective June 30, 2022.
3 We summarize the factual background from our previous opinion in
Souvannavong’s direct appeal. (See People v. Souvannavong (Oct. 22, 2004,
D042456 [nonpub. opn.].) This factual summary is recited for the limited
purpose of providing context to Souvannavong’s criminal conviction. We
otherwise do not rely on those facts for our analysis here.
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denied being at the party. After admitting he had been at the party, he then
denied having a knife. While he was still denying that he had a knife, the
police officers told him that they could not make him talk and that he was
there at his own request. When confronted with statements of others who
said that he did have a knife, Souvannavong eventually conceded he did have
a knife. When questioned further, Souvannavong conceded stabbing the
victim but only accidentally while he struggled with the victim and an
acquaintance of the victim. Souvannavong repeatedly stated that he did not
intend to stab the victim. The People charged Souvannavong with murder
(§ 187, subd. (a); count 1) and assault with a deadly weapon and with force
likely to cause great bodily injury (§ 245, subd. (a)(1); count 2). At trial, the
court denied Souvannavong’s motion to suppress the statement made during
the police interview. Souvannavong waived his right to a jury. Participants
in the fight and police officers testified. A medical examiner testified that the
victim had suffered a six-inch deep wound to his chest, which the examiner
did not believe was the result of an accident.
On May 30, 2003, the court convicted Souvannavong of second degree
murder (§ 187, subd. (a)) and found true an allegation that Souvannavong
committed the crime for the benefit of, at the direction of, or in association
with, a criminal street gang (§ 186.22, subd. (b)(1)). The court acquitted
Souvannavong on the assault charge and subsequently sentenced
Souvannavong to an indeterminate term of 15 years to life on the murder
conviction and a consecutive determinate term of 10 years on the gang
enhancement.
On appeal, this court, in an unpublished opinion, affirmed the
judgment but replaced the 10-year consecutive sentence with a 15-year parole
ineligibility, because a gang finding will not support a 10-year consecutive
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sentence when the underlying sentence is an indeterminate sentence. (See
People v. Souvannavong, supra, D042456.)
On May 11, 2022, Souvannavong filed a petition for resentencing under
section 1172.6. The prosecution contended that the record of conviction
conclusively established Souvannavong was the actual killer and thus was
ineligible for relief under section 1172.6. However, the prosecution did not
identify what portions of the record of conviction supported its position.
The trial court found Souvannavong had not demonstrated a prima
facie showing of eligibility under section 1172.6 and denied the petition,
finding the record of conviction established he actually stabbed the victim.
The court explained:
“Having read the pleadings, the court record establishes
that petitioner was involved in the actual stabbing of the
victim. During the questioning by police, petitioner
admitted he had accidentally knifed the victim. He claimed
that he did not intentionally stab the victim.
“In the case, petitioner was not convicted of murder under a
theory set forth in Penal Code section 1172.6[, subdivision
(a)]. Petitioner was the actual killer. Petitioner attempted
to argue the stabbing was accidental. However, that does
not provide petitioner with relief in the petition nor the
right to a resentencing. Petitioner was the one who
stabbed the victim. His criminal liability in the murder
was not based on the murder being imputed to him or on
him based on the actions of another perpetrator.
“Petitioner has not made the necessary prima facie showing
for relief, and the petition is denied.”
Souvannavong timely appealed.
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DISCUSSION
A. Guiding Principles
Effective January 1, 2019, Senate Bill No. 1437 (Senate Bill 1437)
narrowed liability for murder under the felony-murder rule and eliminated
the natural and probable consequences doctrine.4 (§§ 188, subd. (a)(3) & 189,
subd. (e); People v. Anthony (2019) 32 Cal.App.5th 1102, 1147. (Anthony).)
Senate Bill 1437 accomplished this by amending section 188, which
defined malice, and section 189, which defined the degrees of murder, to
ensure that murder liability was not imposed on a person who was not the
actual killer, did not act with 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); Anthony, supra, 32 Cal.App.5th at
p. 1148.)
Senate Bill 1437 also created section 1172.6, which provided a
procedure for convicted murderers who could not be convicted under the law
as amended to retroactively seek relief. (People v. Lewis (2021) 11 Cal.5th
952, 959 (Lewis).) The process begins with filing a petition containing a
declaration that all requirements for eligibility are met (§ 1172.6,
subd. (b)(1)(A)), including that “[t]he petitioner could not presently be
convicted of murder or attempted murder because of changes to Section 188
or 189 made effective January 1, 2019” (§ 1172.6, subd. (a)(3)). After
receiving a petition containing the required information, “the court must
evaluate the petition ‘to determine whether the petitioner has made a prima
facie case for relief.’ ” (People v. Strong (2022) 13 Cal.5th 698, 708, citing
4 In October 2021, the Legislature passed Senate Bill No. 775 amending
section 1172.6 to expand eligibility for resentencing to persons convicted of
attempted murder under the natural and probable consequences doctrine,
effective on January 1, 2022. (Stats. 2021, ch. 551 (2021-2022 Reg. Sess) § 1.)
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§ 1172.6, subd. (c).) If the petitioner makes a prima facie case showing that
the petitioner is entitled to relief, the court must issue an order to show cause
and hold an evidentiary hearing. (§ 1172.6, subds. (c) & (d)(1); Lewis, at
p. 962.)
B. Analysis
In determining whether a prima facie showing has been made, the trial
court may rely upon the record of conviction. (Lewis, supra, 11 Cal.5th at
p. 971.) However, “[w]hile the trial court may look at the record of
conviction . . . to determine whether a petitioner has made a prima facie case
for section [1172.6] relief, the prima facie inquiry under subdivision (c) is
limited.” (Ibid.) “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;
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, at p. 971; Drayton, at p. 978.)
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.)
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“[T]his authority to make determinations without conducting an
evidentiary hearing pursuant to section [1172.6], subd. (d) is limited to
readily ascertainable facts from the record (such as the crime of conviction),
rather than factfinding involving the weighing of evidence or the exercise of
discretion (such as determining whether the petitioner showed reckless
indifference to human life in the commission of the crime).” (Drayton, supra,
47 Cal.App.5th at p. 980.) Facts preclusive of relief at the prima facie stage
may include, for example, the absence of jury instructions on the felony
murder theory or natural and probable consequences doctrine. (People v.
Rivera (2021) 62 Cal.App.5th 217, 236; see, e.g., People v. Daniel (2020) 57
Cal.App.5th 666, 670-671 [jury was not instructed on either felony murder or
murder under the natural and probable consequences doctrine].) Conversely,
the presence of certain jury instructions, in addition to the jury’s verdict and
findings upon specific enhancements may also conclusively establish the
petitioner was convicted as the actual killer, without factfinding or weighing
evidence. (See People v. Harden (2022) 81 Cal.App.5th 45, 56 [concluding
that the jury instructions and verdicts conclusively established the jury found
that the defendant was the actual killer].)
Although the cases discussed ante detail how a trial court may use the
record of conviction to determine that a petitioner has not made a prima facie
case for relief, the matter before us is somewhat different. Below, in initially
responding to Souvannavong’s petition for resentencing, the prosecution filed
a written response but baldly asserted, without citation to any portion of the
record of conviction, that Souvannavong was the actual killer. Indeed, the
prosecution purported to describe facts from Souvannavong’s case without
citation to the record of conviction:
“In petitioner’s murder, he was the actual killer. His
defense at trial was that the stabbing was accidental. The
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medical examiner’s expert opinion was that it was not
accidental. The trial court found the same, and convicted
petitioner of second degree murder. On appeal, petitioner
sought to have his conviction overturned by claiming his
confession should have been suppressed. The Court of
Appeal denied his appeal.”
The prosecution did attach two exhibits to its initial response to
Souvannavong’s petition, but neither exhibit is helpful. Exhibit A
consists of four versions of the abstract of judgment, an ex parte minute
order directing the clerk to prepare a third amended abstract of
judgment, an ex parte order upon remittitur, and the criminal minutes-
pronouncement of judgment. Nothing in Exhibit A establishes that
Souvannavong was the actual killer.
Exhibit B also is not instructive here. Exhibit B is a copy of our
unpublished opinion in People v. Souvannavong, supra, D042456. Although
the trial court may consider the procedural history of the case recited in that
opinion (§ 1172.6, subd. (d)(3)), the court cannot base its denial of a petition
under section 1172.6 on the factual recital of that opinion. (See People v.
Flores (2022) 76 Cal.App.5th 974, 988.) Thus, the prosecution did not submit
any portion of the record of conviction in its initial response to
Souvannavong’s petition that established Souvannavong was the actual killer
as a matter of law.
Tellingly, in the respondent’s brief, the People do not point to any
portion of the record below that established Souvannavong was the actual
killer. Instead, they ask this court to take judicial notice of the record on
appeal in People v. Souvannavong, supra, D042456. Then the People
highlight various portions of the record (e.g., transcripts of opening
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statements and closing arguments as well as the trial court’s discussion of
the evidence) and argue that it is clear that Souvannavong stabbed the
victim.
Under the unique circumstances before us, we decline to take judicial
notice of the record on appeal in People v. Souvannavong, supra, D042456,
which includes the reporter’s transcripts from Souvannavong’s trial. There is
no indication that those transcripts were before the trial court below when it
denied Souvannavong’s petition at the prima facie stage. Moreover, at least
in some respect, the People are asking us to review the transcripts and make
certain inferences and findings. Those duties are encompassed in the fact
finding function that is the province of the trial court at a section 1172.6,
subdivision (d) evidentiary hearing. We therefore refrain from engaging in
any such tasks on an appeal of an order denying a petition for resentencing
under section 1172.6. Consequently, there is no justification for taking
judicial notice as the People request.
In summary, the trial court denied Souvannavong’s petition for
resentencing at the prima facie stage, explaining that it had read the
“pleadings” and determined the court record established that Souvannavong
was the actual killer. We see nothing in the record before us that would
allow the trial court to make such a finding as a matter of law, and the trial
court did not identify what portion of the record of conviction supported its
conclusion.5 As such, the prudent course here is to remand this matter back
5 Souvannavong also contends the trial court improperly relied on the
probation report to deny his petition at the prima facie stage. The People
counter that there is no indication that the trial court relied on the probation
report. We agree with the People that it does not appear that the trial court
relied on the probation report to deny the petition.
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to the superior court with instructions to issue an order to show cause and
hold the appropriate evidentiary hearing. (Cf. Lewis, supra, 11 Cal.5th at
p. 971.)
DISPOSITION
The order is reversed. This matter is remanded to the superior court
with instructions to issue an order to show cause and hold an evidentiary
hearing.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
RUBIN, J.
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