People v. Vilayngeun CA1/3 ( 2024 )

Filed 5/16/24 P. v. Vilayngeun CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A167412
v.
KEVIN THONGSAY (Contra Costa County Super. Ct.
VILAYNGEUN, No. 05001326040)
Defendant and Appellant.
This is the second appeal in this case. In the first appeal, we affirmed
Kevin Thongsay Vilayngeun’s convictions for first-degree murder with a
firearm enhancement, shooting at an occupied motor vehicle with a firearm
enhancement, conspiracy to commit robbery with great bodily injury and
firearm enhancements, and attempted robbery.
In 2022, Vilayngeun petitioned for resentencing under former Penal
Code1 section 1170.95, renumbered section 1172.6.2 Following an evidentiary
hearing, the court denied Vilayngeun’s petition because the evidence proved
beyond a reasonable doubt that he was the actual killer. Vilayngeun now
1 All further undesignated statutory references are to the Penal Code.
2 Effective June 30, 2022, section 1170.95 was renumbered section
1172.6, with no change in text. (Stats. 2022, ch. 58, § 10, eff. June 30, 2022;
Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.)
1
appeals, arguing his counsel was ineffective for failing to object to the
admission of certain trial testimony at the section 1172.6 hearing. We
affirm.3
FACTUAL AND PROCEDURAL BACKGROUND
Vilayngeun was convicted by a jury of first degree murder (§ 187, subd.
(a)); conspiracy to commit robbery (§§ 182, subd. (a)(1), 211, & 212.5, subd.
(c)); and attempted second degree robbery (§§ 211, 212.5, subd. (c)). The jury
also found true allegations that Vilayngeun personally discharged a firearm
causing death (§ 12022.53, subd. (d)), personally used a firearm (§ 12022.5,
subd. (a)), and personally inflicted great bodily injury (§ 12022.7, subd. (a)).
The trial court sentenced Vilayngeun to a total term of 50 years to life in
state prison and this court affirmed the judgment. (People v. Vilayngeun
(Jan. 23, 2020, A147306) [nonpub. opn.].)4
In 2022, Vilayngeun filed a petition for resentencing, asserting he could
not presently be convicted of murder because of recent amendments to the
3 On September 18, 2023, Vilayngeun filed an unopposed request for
judicial notice of (1) the entire record in the prior appeal, People v.
Vilayngeun (Jan. 23, 2020, A147306), (2) this court’s prior unpublished
opinion in the prior appeal, and (3) a transcript of an interview of the
jailhouse informant. This court denied the request as to the entire appellate
record in People v. Vilayngeun, supra, and deferred the request as to the two
specific documents. We now grant the request as to our prior opinion, but
deny the request as to the transcript because it is not relevant for our
resolution of this matter. (Evid. Code, § 452, subd. (d).)
On February 15, 2024, the Attorney General filed an unopposed
request for judicial notice of three volumes of reporter’s transcripts from the
prior appeal. We grant the request. (Evid. Code, § 452, subd. (d).)
4 Because this is an appeal from resentencing, a detailed factual
background is unnecessary. The full factual background can be found in the
prior nonpublished opinion.
2
Penal Code. The trial court concluded Vilayngeun had stated a prima facie
case for relief and issued an order to show cause.
At the subsequent evidentiary hearing, the court considered the record
of conviction. It also considered witness testimony from the trial transcript,
noting that neither party contested the transcript’s admissibility.
The court denied the petition, finding the prosecution carried its
burden of demonstrating Vilayngeun was ineligible for resentencing.
Specifically, the court explained “the testimony implicating [Vilayngeun], and
that which identified him at the scene, combined with the overwhelming
weight of other reliable circumstantial evidence including that [Vilayngeun’s]
DNA [was] found on a bullet casing at the scene, was sufficient to prove
[Vilayngeun’s] identity as the perpetrator of the crime.” The court thus
concluded the prosecution had proven, beyond a reasonable doubt, that
Vilayngeun was the actual killer and guilty of felony murder under California
law as amended. Vilayngeun appealed.
DISCUSSION
Vilayngeun asserts his counsel provided ineffective assistance by
failing to object to the admission of certain trial testimony during his section
1172.6 hearing. We disagree.
I. General Principles
In 2018, the Legislature enacted Senate Bill No. 1437 (SB 1437) which
“ ‘amend[ed] 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.’ ” (People v. Gentile (2020) 10
Cal.5th 830, 842.)
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SB 1437 also created the following procedure to allow offenders to
retroactively seek relief from murder convictions that were no longer valid
under the amended rules: “an offender must file a petition in the sentencing
court averring that: ‘(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 or accepted a plea offer in lieu of a trial at which the
petitioner could be convicted for first degree or second degree murder[; and]
[¶] (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.’ ”
(People v. Lewis (2021) 11 Cal.5th 952, 959–960; Stats. 2022, ch. 58, § 10.)
When a petition complies with these three requirements, the court must
determine whether the petitioner has made a prima facie showing for relief.
(Id. at p. 960.)
Where, as here, a prima facie showing for relief has been made, the
trial court must issue an order to show cause and hold a hearing to determine
whether to vacate the murder conviction. (§ 1172.6, subd. (d)(1).) The
burden of proof remains on the prosecution to prove, beyond a reasonable
doubt, that the petitioner is guilty of murder under the California law as
amended by the changes to Section 188 or 189. (§ 1172.6, subd. (d)(3) (section
1172.6(d)(3)).) Admission of evidence in the hearing is governed by the
Evidence Code, “except that the court may consider evidence previously
admitted at any prior hearing or trial that is admissible under current law,
including witness testimony, stipulated evidence, and matters judicially
noticed. . . . The prosecutor and the petitioner may also offer new or
additional evidence to meet their respective burdens.” (§ 1172.6(d)(3).)
4
To prevail on a claim of ineffective assistance of counsel, a defendant
must show that (1) his counsel’s representation fell below an objective
standard of reasonableness, and (2) but for his counsel’s errors there is a
reasonable probability that the result of the proceeding would have been
different. (Strickland v. Washington (1984) 466 U.S. 668, 693.) Because a
defendant must satisfy both components, we may reject a claim of ineffective
assistance of counsel if there is an insufficient showing as to either
component. (Id. at p. 697.)
II. Testimony of Jailhouse Informant
Vilayngeun contends his counsel was ineffective by failing to object to
the resentencing court’s admission of a jailhouse informant’s trial testimony
at the section 1172.6 hearing as the testimony constituted inadmissible
hearsay. This argument fails because his counsel did not have a valid
objection to the admission of that testimony. (See People v. Bradley (2012)
208 Cal.App.4th 64, 90 [“Failure to raise a meritless objection is not
ineffective assistance of counsel.”].)
The purpose of a section 1172.6 hearing is not to conduct a new trial on
the defendant’s guilt. (See Torres v. Superior Court (2023) 94 Cal.App.5th
497, 515.) Rather, section 1172.6 “is an act of legislative lenity in that a
defendant who qualifies for relief may receive a decreased punishment.”
(People v. Myles (2021) 69 Cal.App.5th 688, 703.) Defendants thus are not
afforded all the same rights provided at trial. (See, e.g., People v. Perez
(2018) 4 Cal.5th 1055, 1063–1064 [trial court’s factfinding based on new
evidence regarding petitioner’s eligibility for resentencing does not implicate
6th Amend. rights]; Torres v. Superior Court, supra, 94 Cal.App.5th at
pp. 515–516 [“[T]he parties to a section 1172.6, subdivision (d)(3) hearing are
not . . . foreclosed from referring to the jury’s verdicts or findings, unlike the
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situation where a new trial is granted in a criminal case. [Citation.] Indeed,
here the trial court is bound by certain findings previously made.”].)
Nor does a section 1172.6 petition “ ‘afford the [defendant] a new
opportunity to raise claims of trial error or attack the sufficiency of the
evidence supporting the jury’s findings. To the contrary, “nothing in the
language of section [1172.6] suggests it was intended to provide redress for
allegedly erroneous prior factfinding . . . . The purpose of section [1172.6] is to
give defendants the benefit of amended sections 188 and 189 with respect to
issues not previously determined, not to provide a do-over on factual disputes
that have already been resolved” ’ ” (People v. Bratton (2023) 95 Cal.App.5th
1100, 1127; accord People v. Clements (2022) 75 Cal.App.5th 276, 297 [“Under
our interpretation [of former section 1170.95], the judge simply reviews the
record, hears the testimony, and decides as a factual matter whether the
petitioner committed murder under the current law.”]). Vilayngeun’s
contentions to the contrary have been considered and rejected by multiple
courts.
In People v. Cody (2023) 92 Cal.App.5th 87, 101 (Cody), the defendant
asserted the trial court improperly relied on trial transcripts at his section
1172.6 hearing. He asserted, under the Evidence Code, the prosecution was
required to show the witness was unavailable before his or her prior
testimony could be admitted into evidence. (Cody, at p. 103.) The Court of
Appeal disagreed. (Ibid.) While acknowledging that section 1172.6,
subdivision (d)(3) provides the Evidence Code shall govern admission of
evidence at a section 1172.6 hearing, the court went on to explain: “If the
Legislature had stopped there, then we would likely agree with [the
petitioner’s] interpretation of the statute. That is, we would find the
prosecution is required to make a showing of witness unavailability under
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Evidence Code section 1291, before the trial court could admit the former
testimony of witnesses at the evidentiary hearing. However, the law has an
explicit exception that provides for the admission of former testimony: ‘The
admission of evidence in the hearing shall be governed by the Evidence Code,
except that the court may consider evidence previously admitted at any prior
hearing or trial that is admissible under current law, including witness
testimony . . . .’ ” (Cody, at p. 104.) The court thus concluded that having to
relitigate the admissibility of trial transcripts “would mean that all section
1172.6 evidentiary hearings would effectively become new court trials,” which
“is plainly not what the Legislature intended.” (Cody, at p. 104.)
Our colleagues in Division Four reached a similar conclusion in People
v. Davenport (2023) 95 Cal.App.5th 1150 (Davenport). The court held a “plain
reading” of section 1172.6, subdivision (d)(3) compelled the conclusion that a
preliminary hearing transcript was generally admissible, noting in relevant
part, “the provision unambiguously provides that a trial court ruling on the
merits of a resentencing petition ‘may consider evidence previously admitted
at any prior hearing or trial that is admissible under current law, including
witness testimony.’ ” (Davenport, at p. 1158.)
The Davenport court summarized its interpretation of section 1172.6 as
follows: “[T]he rules of evidence apply to hearings held under section 1172.6,
subdivision (d); under those rules, hearsay is inadmissible in the absence of
an exception; and the pertinent exception here is the clause in section 1172.6,
subdivision (d)(3), stating that ‘except that the court may consider evidence
previously admitted at any prior hearing . . . .’ ” (Davenport, supra, 95
Cal.App.5th at p. 1158.) Although section 1172.6, subdivision (d)(3) also
requires evidence admitted at the hearing to be “ ‘admissible under current
law,’ ” the court determined “the most natural reading of those words is that
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the basis for admission of testimony at the hearing or trial in which it was
previously admitted must remain a valid basis for admitting the testimony
‘under current law.’ ” (Davenport, at p. 1158.) In so finding, the court
rejected the petitioner’s argument that this provision required former witness
testimony to be admissible under Evidence Code section 1291, noting that
such interpretation would render “the exception for previously admitted
testimony” superfluous. (Davenport, at p. 1159.)
Cody and Davenport thus concluded that testimony which had been
considered and admitted at a hearing or trial may be considered at a
resentencing hearing without having to reestablish its admissibility unless a
new evidentiary rule has since been enacted between the time of the
testimony and the resentencing hearing. (See Davenport, at p. 1158; Cody, at
p. 104.) To be clear, these cases do not suggest all trial testimony must be
admitted at a section 1172.6 hearing. (Cody, supra, 92 Cal.App.5th at p. 104
[“some evidence that was admitted at a former trial . . . would not be
admissible under current law.”].) Rather, Cody’s cite to People v. Sanchez
(2016) 63 Cal.4th 665 (Sanchez) provides an instructive example. In Sanchez,
the California Supreme Court adopted a hearsay rule that limited use of
case-specific out-of-court statements to support an expert opinion. A section
1172.6 hearing occurring after the Supreme Court’s decision in Sanchez could
thus exclude such case-specific out-of-court statements, even if previously
admitted.
While Vilayngeun asserts People v. Grimes (2016) 1 Cal.5th 698(Grimes) and People v. Gallardo (2017) 18 Cal.App.5th 51 (Gallardo)
“clarified the standard for the declaration against penal interest hearsay
exception,” Grimes and Gallardo do not represent a new evidentiary rule that
would require a resentencing court to reevaluate admissibility. In Grimes,
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the “clarification” noted by Vilayngeun did not limit the exception for
declarations against penal interest but, if anything, expanded its scope. (Id.
at pp. 716–717 [“a statement is not . . . automatically inadmissible merely
because it does not . . . ‘significantly enhance the personal detriment’ to a
person who has already confessed responsibility for the crime.”].) The
concurring and dissenting opinions noted this expansion by criticizing the
majority opinion “for ‘watering down the standard for admission.’ ” (Id. at
p. 717.) The majority opinion then responded by asserting that, in reaching
its conclusion, “we have broken no new ground.” (Ibid.) And Gallardo
applied Grimes in evaluating whether any statements at issue were against
penal interest. (Gallardo, at pp. 70–72.) Accordingly, Vilayngeun has failed
to identify any change in the law that could have provided a basis for his
counsel to object to the admission of the jailhouse informant’s statements at
his resentencing hearing.5
The concurring opinion interprets section 1172.6 to require that, “[i]n
the event of an objection to testimony that was admitted at trial, . . . the
resentencing court must answer . . . whether such testimony is admissible
under the normal rules of evidence.” (Conc. opn. of Tucher, P.J., at p. 1.)
While the concurrence optimistically states “[u]sually, the proviso will be
unimportant,” resentencing courts would likely see numerous challenges to
evidence and testimony that had previously been admitted and considered
without objection under identical evidentiary rules. Because the approach
proposed by the concurrence would effectively place a burden on the
5 Because we conclude Vilayngeun was not entitled to relitigate the
admissibility of the jailhouse informant’s testimony, and his counsel thus was
not ineffective for failing to object to the admission of that testimony at the
section 1172.6 hearing, we need not address the question of prejudice or the
Attorney General’s collateral estoppel argument.
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resentencing courts and expand the authority of the resentencing courts in
ways that exceed the Legislature’s intent, we do not adopt it.
In sum, we agree with Cody’s and Davenport’s reasoning and reject
Vilayngeun’s arguments to the contrary. Because the resentencing court had
no duty to reevaluate the admissibility of the jailhouse informant’s trial
testimony, Vilayngeun’s counsel did not provide ineffective assistance by
failing to object to its admission.
DISPOSITION
The order denying the petition for resentencing is affirmed.
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_________________________
Petrou, J.
I CONCUR:
_________________________
Fujisaki, J.
A167412/People v. Vilayngeun
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TUCHER, P. J., Concurring.
I agree appellant Vilayngeun has not established that his counsel at
the Penal Code section 1172.6 hearing was ineffective, but I write separately
to explain my reading of the statute’s evidentiary provision, section 1172.6,
subdivision (d)(3) (§ 1172.6(d)(3)). In short, I think we must take the
Legislature at its word, that at a resentencing hearing “the court may
consider evidence previously admitted at any prior hearing or trial” provided
that evidence “is admissible under current law.” (Ibid.) Usually, the proviso
will be unimportant, and evidence previously admitted will be considered at a
resentencing hearing without challenge. But not always. In the event of an
objection to testimony that was admitted at trial, the straight-forward
question the resentencing court must answer is whether such testimony is
admissible under the normal rules of evidence, aside from the fact that it is
not being presented live at the resentencing hearing but was “previously
admitted at . . . trial.” (Ibid.)
The authority on which my colleagues rely supports this reading of the
statute. In People v. Cody (2023) 92 Cal.App.5th 87, 103 (Cody), a petitioner
seeking resentencing under Penal Code section 1172.6 argued that the
prosecution could not rely on testimony admitted at trial unless it first
proved the current unavailability of the trial witness, as required when
Evidence Code section 1291 is used to introduce prior witness testimony. The
Court of Appeal rejected that argument as inconsistent with the “plain
language” of section 1172.6(d)(3). (Cody, at p. 104.) Because petitioner Cody
had identified no specific prior testimony that “would be inadmissible under
current law,” the trial court committed no error in relying on trial
transcripts, the appellate court ruled. (Ibid.)
1
Following Cody, People v. Davenport (2023) 95 Cal.App.5th 1150, 1157–
1158 (Davenport) reached the same conclusion with regard to testimony
provided at a preliminary hearing. Prosecutors need not prove that a witness
who previously provided such testimony is unavailable at a resentencing
hearing, the Davenport court concluded, if the testimony meets the
requirements of section 1172.6(d)(3): that it is admissible “ ‘under current
law’ ” and not subject to a statutory carveout for a law enforcement officer’s
hearsay testimony at a preliminary examination, pursuant to Evidence Code
section 872, subdivision (b). (Davenport, at pp. 1158–1161.) The Davenport
court correctly understood section 1172.6(d)(3) as an alternative to Evidence
Code section 1291 for establishing the admissibility of prior hearing
testimony in the context of a resentencing hearing. (See Davenport, at
pp. 1158–1161.)
Cody and Davenport are helpful explications of section 1172.6(d)(3), but
they do not decide the issue before us: how to analyze an objection that a
particular piece of prior testimony is not “admissible under current law” for
reasons unrelated to Evidence Code section 1291. Appellant argues his
counsel at the resentencing hearing should have objected to a jailhouse
informant’s trial testimony recounting statements made by appellant’s
codefendant, statements that implicated both defendants in the homicide.
His codefendant’s out-of-court statements shifted blame onto appellant, he
argues, and were thus not sufficiently trustworthy to have been admitted as
declarations against penal interest. (See Evid. Code, § 1230.)
To decide whether the jailhouse informant’s prior testimony was
admissible under section 1172.6(d)(3), one must apply the caselaw
interpreting Evidence Code section 1230. This inquiry does not require us to
compare case law as it existed at the time of trial with case law as it exists
2
today. The only issue to be decided, in applying section 1172.6(d)(3), is
whether the particular piece of former testimony “is admissible under current
law.” (Ibid.) This is exactly the kind of evidentiary ruling that trial courts
make every day.
Under the circumstances of this case, however, we need not analyze the
evidentiary issue. As the attorney general points out, appellant made the
same argument regarding the admissibility of the same evidence back in
2015, when he sought to sever his trial from his codefendant’s on the theory
that her statements to the informant could not be admitted against him
under Evidence Code section 1230. After a hearing on the issue, the trial
court decided otherwise. Appellant did not challenge this ruling in appealing
his conviction, which has been final since 2020. Collateral estoppel therefore
bars appellant from relitigating the issue now. (See People v. Strong (2022)
13 Cal.5th 698, 715-718 (Strong) [collateral estoppel applies in a Penal Code
section 1172.6 hearing where the issue to be precluded is identical to one
actually litigated and necessarily decided, on the merits, in a former
proceeding involving the same parties, and that decision is final].) Nothing
about appellant’s discussion of People v. Grimes (2016) 1 Cal.5th 698 or
People v. Gallardo (2017) 18 Cal.App.5th 51 in the reply brief persuades me
that the standard for admitting a declaration against penal interest has so
changed since appellant’s trial, that it would be inequitable to apply
collateral estoppel here.
In sum, I agree with the majority that appellant has not established
his counsel’s ineffectiveness at the resentencing hearing because he has not
established that a challenge to the admissibility of the informant’s testimony
would have succeeded. But I reach that conclusion through application of
collateral estoppel principles, and not by interpreting section 1172.6(d)(3) as
3
providing for the admissibility of previously admitted evidence without
regard to whether the evidence is, in fact, “admissible under current law.”
(§ 1172.6(d)(3).)
The majority would have a resentencing court admit prior testimony
unless a new evidentiary rule has “been enacted between the time of the
[trial] testimony and the resentencing hearing.” (Maj. opn. ante, at p. 8.) I
acknowledge that the emergence of a new evidentiary rule may be relevant in
deciding whether to apply collateral estoppel. (See Strong, supra, 13 Cal.5th
at pp. 716–717.) But I see no place for that inquiry in analyzing the
admissibility of evidence under section 1172.6(d)(3). In the case before us,
the difference between the two modes of analysis may be academic. In
another case, where for example the prerequisites for applying collateral
estoppel have not been established (e.g., the issue at trial was not identical),
the difference in analytic approach may be dispositive.
I accordingly concur in the decision to AFFIRM the order denying relief
but do not join the majority’s opinion.
_________________________
Tucher, P. J.
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