People v. Huynh CA4/1 ( 2024 )

Filed 10/14/24 P. v. Huynh 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D082806
Plaintiff and Respondent,
v. (Super. Ct. No. SCD222832)
PHILONG HUYNH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Runston G. Maino, Judge. Reversed and remanded with directions.
Waldemar D. Halka, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, and Andrew Mestman, Deputy Attorney
General, for Plaintiff and Respondent.
Philong Huynh appeals from an order denying his petition to vacate his
murder conviction and to be resentenced pursuant to Penal Code section
1172.6.1 His appointed appellate counsel filed an opening brief requesting
1 Further unspecified statutory references are to the Penal Code.
review under People v. Delgadillo (2022) 14 Cal.5th 216. After we issued a
Delgadillo order notifying Huynh of his right to file a supplemental brief, he
did so.
In his supplemental brief, Huynh argues, among other claims, that the
jury instructions from his trial permitted the prosecution to proceed under a
theory of felony murder and the natural and probable consequences doctrine.
After review of Huynh’s brief, we requested supplemental briefing from the
parties addressing the effect, if any, of People v. Lopez (2022) 78 Cal.App.5th
1 (Lopez) on the issue of whether the superior court erred by denying Huynh’s
resentencing petition at the prima facie stage. As we shall discuss, we
conclude the record of conviction does not confirm, as a matter of law, that
Huynh is ineligible for relief under section 1172.6. Accordingly, we shall
reverse and remand with directions to the superior court to issue an order to
show cause.
FACTUAL AND PROCEDURAL BACKGROUND
In 2011, a jury convicted Huynh of first degree murder (§ 187,
subd. (a)), two counts of sodomy of an intoxicated person (§ 286, subd. (i)),
and two counts of oral copulation of an intoxicated person (former § 288a,
subd. (i), renumbered as § 287, subd. (i)). The jury found true the special
circumstances allegations that the murder was committed during the
commission or attempted commission of oral copulation (§ 190.2,
subd. (a)(17)(F)) and sodomy (§ 190.2, subd. (a)(17)(D)). Huynh was the sole
defendant charged in connection with the murder. The trial court sentenced
Huynh to life without the possibility of parole for the murder offense, plus an
additional determinate term of 10 years for the sodomy and oral copulation
offenses. We affirmed the judgment in 2012. (People v. Huynh (2012)
212 Cal.App.4th 285.)
2
In 2019, Huynh petitioned to vacate his conviction under section
1172.6.2 The trial court summarily denied the petition without appointing
counsel or holding a hearing. Relying on our prior opinion in Huynh’s direct
appeal, the trial court found Huynh was the actual killer and therefore
ineligible for relief. We affirmed the trial court’s order in May 2020. (People
v. Huynh (May 8, 2020, D075588) [nonpub. opn.] (Huynh).)
Thereafter, following amendments to section 1172.6 made by Senate
Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill 775), Huynh filed a second
petition for resentencing in March 2023. The court appointed counsel,
received further briefing from the parties, and conducted a prima facie
hearing. At the hearing, the court informed the parties it had reviewed the
prior appellate opinions from Huynh’s direct appeal and the appeal from his
first petition for resentencing. Huynh objected to the court’s consideration of
the appellate opinions, arguing that section 1172.6 prohibited the court “from
relying on [them] for anything but a procedural history.” In response, the
prosecutor stated: “Your Honor, I don’t think the Court needs to rely on the
Court of Appeal opinion in this matter to find that the Petitioner is ineligible.
So I don’t take issue with that.” The court responded: “Okay. Very well.”
The court explained that although it had read the opinions, it understood the
purpose of the proceeding at the prima stage was not “factfinding.”
Among other evidence submitted prior to the hearing, the People
provided the jury instructions from Huynh’s 2011 jury trial. The instruction
enumerating the elements of first degree felony murder, CALCRIM No. 540A,
2 Huynh brought his initial petition in 2019 under former
section 1170.95, which was amended effective January 1, 2022, and then
renumbered as section 1172.6 without substantive change on June 30, 2022.
(See Stats. 2022, ch. 58, § 10, (Assem. Bill No. 200).) We refer to the statute
by its current number throughout this opinion.
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required the People to prove at Huynh’s trial that he (1) committed or
attempted to commit sodomy or oral copulation of an intoxicated person,
(2) intended to commit sodomy or oral copulation of an intoxicated person,
and (3) caused the death of another person while committing or attempting to
commit sodomy or oral copulation of an intoxicated person. The instruction
related to the special circumstance allegation, CALCRIM No. 730, similarly
required the People to prove Huynh committed or attempted to commit
sodomy or oral copulation of an intoxicated person and did an act that caused
the death of another person. The court also provided CALCRIM No. 549,
which required the People to prove Huynh’s commission or attempted
commission of sodomy or oral copulation of an intoxicated person was part of
a continuous transaction with the act that caused the victim’s death. The
instruction provided a list of factors to assist the jury in this determination,
including whether the victim’s death was a natural and probable consequence
of the sodomy or oral copulation offenses.
At the hearing, the prosecutor argued Huynh was collaterally estopped
from raising the claims in the instant petition because they had already been
raised in his first petition. According to the prosecutor, the legislative
amendments to the felony murder resentencing process under section 1172.6
were inapplicable to Huynh’s case. As to the merits of the petition, the
prosecutor argued the jury instructions demonstrated Huynh was convicted
of felony murder as the actual killer, and he was not convicted under a theory
of accomplice liability or under the natural and probable consequences
doctrine. Thus, he was ineligible for relief as a matter of law.
Huynh argued he was not collaterally estopped from raising the claims
in his second petition because there had been significant changes to the
resentencing procedure under section 1172.6 since he filed his initial petition.
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Next, he contended that because the jury was instructed on felony murder,
the court should find he presented a prima facie claim for relief and the case
should proceed to an evidentiary hearing. He acknowledged that he was the
only person charged in the Information, but he argued this fact alone did not
necessarily mean there were no other individuals involved in the commission
of the offense. Huynh emphasized that the burden at the prima facie stage
was “quite low.”
After considering the parties’ arguments, the court expressed “severe
doubts” that it had jurisdiction to hear the case. The court acknowledged the
law had changed since Huynh’s first petition for resentencing but questioned
whether these changes were applicable to his case. Nonetheless, the court
assumed it had jurisdiction and found that Huynh “[fell] outside the statute.”
The prosecutor requested clarification as to the ruling, and the court
explained it found Huynh was the “actual killer” and therefore ineligible for
relief. Therefore, the court denied the petition.
This appeal followed.
DISCUSSION
In 2019, the Legislature enacted Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437) “ ‘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).)” (People v. Lewis (2021) 11 Cal.5th 952,
959 (Lewis).) “[S]ection 189, as amended, now limits liability under a
felony-murder theory principally to ‘actual killer[s]’ (. . . § 189, subd. (e)(1))
and those who, ‘with the intent to kill,’ aid or abet ‘the actual killer in the
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commission of murder in the first degree’ (id., subd. (e)(2)).” (People v. Strong
(2022) 13 Cal.5th 698, 708 (Strong).) Senate Bill 1437 also created a
procedural mechanism that allows persons convicted under the former
murder laws to petition for retroactive relief. (Ibid.; Stats. 2018, ch. 1015,
§ 4.)
Thereafter, Senate Bill 775 made several amendments to the
resentencing procedures set forth in section 1172.6. Among other changes,
Senate Bill 775 amended section 1172.6, subdivision (d)(3) governing
evidentiary hearings to allow courts to consider only “the procedural history
of the case recited in any prior appellate opinion.” (§ 1172.6, subd. (d)(3).)
Several courts have since construed this language to mean that trial courts
are not permitted to rely on facts recited in an appellate opinion to rule on a
petition under section 1172.6, even at the prima facie stage.3 (Beaudreaux,
3 Although the parties have not raised collateral estoppel in their
supplemental letter briefs, we note that the amendments made to
section 1172.6 by Senate Bill 775 permitted Huynh to file a second petition.
In denying Huynh’s initial petition, the trial court relied on our prior
appellate opinion from Huynh’s direct appeal. (Huynh, supra, D075588
[“[c]iting our prior opinion, the trial [court] found Huynh ‘was the actual
killer’ (§ 189, subd. (e)(1)) and, thus, was ineligible for resentencing even
under the new felony-murder standard”].) Thereafter, some courts have
construed Senate Bill 775 to prohibit reliance on the facts stated in a prior
appellate opinion, even at the prima facie stage. (See, e.g., People v.
Beaudreaux (2024) 100 Cal.App.5th 1227, 1238 (Beaudreax); People v. Cooper
(2022) 77 Cal.App.5th 393, 400, fn. 9 (Cooper); People v. Flores (2022)
76 Cal.App.5th 974, 988 (Flores).) Thus, changes to section 1172.6 after
Huynh filed his initial petition permitted him to raise the claims in the
instant petition. (See People v. Farfan (2021) 71 Cal.App.5th 942, 951
[changes to the substance and procedure of section 1172.6, including judicial
interpretations of the scope of the law, permitted litigation of a subsequent
petition]; People v. Harden (2022) 81 Cal.App.5th 45, 52 (Harden) [petition
was not barred by issue preclusion because the petition made claims based on
new law that did not exist at the time of the initial petition].)
6
supra, 100 Cal.App.4th at p. 1238; Cooper, supra, 77 Cal.App.5th at p. 400,
fn. 9; see also People v. Langi (2022) 73 Cal.App.5th 972, 979–980 [trial court
erred by treating statements in the prior appellate opinion as conclusive as to
whether the appellant was the actual killer; but see People v. Lopez (2023)
88 Cal.App.5th 566, 576 [prima facie inquiry “is limited to the allegations in
the petition and undisputed facts from the record of conviction (which
includes the appellate opinion)”]; Lopez, supra, 78 Cal.App.5th at p. 13 [“The
record of conviction may include the underlying facts as presented in an
appellate opinion . . . .”].)
A petitioner initiates the resentencing process under section 1172.6 by
“filing of a petition containing a declaration that all requirements for
eligibility are met [citation], including that ‘[t]he petitioner could not
presently be convicted of murder or attempted murder because of changes
to . . . [s]ection 188 or 189 made effective January 1, 2019,’ the effective date
of Senate Bill 1437 (§ 1172.6, subd. (a)(3)).” (Strong, supra, 13 Cal.5th at
p. 708.) For a petition satisfying the pleading requirements under
section 1172.6, subdivisions (a)(1) through (3), the court must appoint
counsel, permit briefing, and conduct an initial hearing under subdivision (c)
to determine whether the petitioner has made a prima facie case for relief,
and if so, issue an order to show cause. (§ 1172.6, subds. (b)(3), (c).)
The trial court may deny the petition at the prima facie stage only if
the record of conviction conclusively demonstrates the petitioner is ineligible
for relief as a matter of law. (Lewis, supra, 11 Cal.5th at pp. 970–972.)
Although the court may examine the record of conviction to assess the
petitioner’s eligibility for relief, it may not engage in factfinding, weigh the
evidence, or assess credibility at the prima facie stage. (Id. at pp. 971–972.)
The record of conviction includes, among other evidence, the jury instructions
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and verdict forms from the petitioner’s jury trial. (See People v. Ervin (2021)
72 Cal.App.5th 90, 106–109 [court properly considered the jury instructions
and verdict forms to evaluate the petitioner’s prima facie claim for relief
under section 1172.6].) We independently review the trial court’s decision to
deny a petition under section 1172.6. (Harden, supra, 81 Cal.App.5th at
p. 52.)
Here, the People argue the record of conviction from Huynh’s trial—
namely, the jury instructions—conclusively demonstrate Huynh was
convicted as the actual and sole perpetrator of the murder for which he was
convicted. The People acknowledge the language from the jury instructions
at Huynh’s trial was similar to that in Lopez, and that in Lopez the reviewing
court concluded the jury instructions did not preclude the petitioner from
relief under section 1172.6 as a matter of law. (Lopez, supra, 78 Cal.App.5th
at p. 20.) However, according to the People, the factual issues presented at
Huynh’s trial were distinct from those in Lopez.
As we discuss, we are not persuaded by the People’s argument. The
jury instructions from Huynh’s trial related to the felony murder charge were
nearly identical to those at issue in Lopez. As in Lopez, to reach a conclusion
that Huynh was ineligible for relief, the trial court would have had to weigh
the evidence and find he was the actual killer. Such weighing is
impermissible at the prima facie stage. Accordingly, we conclude the jury
instructions do not conclusively establish, as a matter of law, that Huynh is
ineligible for relief under section 1172.6.
In Lopez, the jury convicted the defendant of first degree murder and
found true an allegation the murder was committed while the defendant was
engaged in the commission of a robbery. (Lopez, supra, 78 Cal.App.5th at
p. 10.) During the defendant’s trial, “[t]he jury was instructed with
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CALCRIM No. 540A that to find [the] defendant guilty of felony murder, it
had to find he committed robbery and ‘[w]hile committing robbery, the
defendant caused the death of another person.’ ” (Id. at p. 16.) “On the
subject of causation, the trial court instructed the jury as follows: ‘An act
causes death if the death is the direct, natural, and probable consequence of
the act and the death would not have happened without the act. A natural
and probable consequence is one that a reasonable person would know is
likely to happen if nothing unusual intervenes.’ ” (Ibid.) The jury was also
instructed with CALCRIM No. 730, “that to find the robbery-murder
special-circumstance allegation to be true, the jury had to find [the]
defendant ‘did an act that caused the death of another person.’ ” (Lopez, at
p. 16.) The defendant in Lopez filed a petition seeking relief under
section 1172.6, and the trial court found the defendant failed to make a prima
facie case for relief and denied the petition. (Lopez, at p. 11.)
On appeal, the Lopez court reviewed the trial court’s determination
that the record of conviction foreclosed the defendant’s eligibility for relief.
(Lopez, supra, 78 Cal.App.5th at pp. 4–5, 20.) The court concluded that
although the “jury necessarily found that [the] defendant ‘caused the death of
another person’ and ‘did an act that caused the death of another person’ ” (id.
at p. 16), the record of conviction did not conclusively demonstrate, as a
matter of law, that the jury found the defendant personally killed the victim.
(Id. at pp. 17, 19.)
To illustrate this point, the court in Lopez discussed People v. Garcia
(2020) 46 Cal.App.5th 123, a case in which the defendant handed duct tape to
a codefendant, who then placed the tape over the victim’s mouth, causing the
victim to die. (Lopez, supra, 78 Cal.App.5th at p. 18.) The Garcia court
concluded the meaning of “actual killer” within the context of the special
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circumstances allegation under section 190.2, subdivision (b) was “literal:
‘The actual killer is the person who personally kills the victim, whether by
shooting, stabbing, or—in this case—taping his mouth closed, resulting in
death by asphyxiation.’ ” (Lopez, at p. 18, quoting Garcia, at p. 152.) The
court in Garcia reasoned that a jury instruction allowing the jury to find a
special circumstance true based on a finding that the defendant had caused
the victim’s death fell short of the required finding that he was the actual
killer of the victim. (Ibid.)
Similarly, in Lopez the court reasoned, “[t]he jury instructions created
the possibility the jury convicted [the] defendant of felony murder and found
to be true the robbery-murder special-circumstance allegation without
finding him to have been the actual killer. The jury was not instructed it had
to find [the] defendant personally killed the victim to convict him; the jury
was instructed it only had to find [the] defendant committed an act that
caused the victim’s death. The jury might have found defendant, though not
the actual killer, participated somehow in the home invasion robbery, and the
victim’s death was the direct, natural, and probable consequence of an act
committed in the course of his participation.” (78 Cal.App.5th at p. 20.)
Here, the trial court instructed the jury with the same instructions at
issue in Lopez: CALCRIM Nos. 540A and 730. These instructions required
the jury to find Huynh committed an act that “caused” the death of another
person. But the instructions did not necessarily require the jury to find he
personally killed the victim. Instead, the instructions permitted the jury to
convict Huynh if it concluded the victim’s death occurred during the
commission or attempted commission of sodomy or oral copulation of an
intoxicated person, and Huynh did an act that caused the victim’s death. The
jury instructions therefore do not conclusively disclose, as a matter of law,
10
that Huynh was the actual killer. Rather, as in Lopez, the instructions
allowed for the possibility that the jury convicted Huynh as a participant in
the underlying felonies so long as he did an act that caused the victim’s
death.
This court has previously applied Lopez in a similar manner in Harden.
(Harden, supra, 81 Cal.App.5th at p. 54.) There, the jury was instructed on
felony murder and a robbery special circumstances allegation like the jury in
Lopez. (Id. at p. 58.) However, the instructions in Harden required the jury
to find the defendant “kill[ed] a human being” and that the defendant
personally inflicted great bodily injury on the deceased victim; by contrast,
the instructions in Lopez did not require a finding that the defendant killed a
human being, but instead merely required a finding that the defendant
“ ‘committed an act that caused the death.’ ” (Ibid.) In comparing these jury
instructions, we concluded that the instructions in Harden were dissimilar
from Lopez and that the trial court correctly denied the defendant’s petition
at the prima facie hearing because the jury had to find the defendant
personally killed the victim. (Ibid.)
The instructions from Huynh’s trial are nearly identical to those in
Lopez, and unlike the instructions in Harden. The jury at Huynh’s trial was
not required to find Huynh actually killed another human being or that he
personally inflicted great bodily injury during the commission of the offense,
like in Harden. Instead, the instructions merely required the jury to find
Huynh committed an act that caused the death of another human being.
The evidence the People cite in their supplemental letter brief does not
support a contrary conclusion. The People emphasize that the appellate
opinion from Huynh’s direct appeal describes Huynh’s case as a
“single-perpetrator case.” As we have noted, however, the People forfeited
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any reliance on the facts recited in our prior appellate opinions by
acquiescing in defense counsel’s objection, which was supported by existing
case law. (Flores, supra, 76 Cal.App.5th at p. 988.) Additionally, the People
argue that the decision in Lopez “hinged” on the defendant’s testimony, and
that this testimony provided the jury with a basis to believe the defendant
participated in a robbery but did not personally kill the victim. According to
the People, the record from Huynh’s trial does not disclose a similar basis to
allow for vicarious liability like the defendant’s testimony in Lopez. But here
the record does not indicate the trial court reviewed the transcripts from
Huynh’s trial to find he was ineligible for relief as a matter of law, nor is this
evidence before this court. The record that is before this court and that may
be properly considered in reviewing Huynh’s section 1172.6 petition—the
charging documents, jury instructions, and verdict forms—do not conclusively
demonstrate, as a matter of law, Huynh’s ineligibility for relief.
Accordingly, we reverse the order denying Huynh’s petition for relief
and direct the trial court to issue an order to show cause. We take no
position on whether Huynh is ultimately entitled to relief under
section 1172.6.
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DISPOSITION
The order denying Huynh’s section 1172.6 petition is reversed. The
trial court is directed to issue an order to show cause and conduct the
proceedings required by section 1172.6, subdivision (d).
KELETY, J.
WE CONCUR:
McCONNELL, P. J.
BUCHANAN, J.
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