People v. Her CA3

Filed 3/13/23 P. v. Her CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yuba)
----
THE PEOPLE, C096211
Plaintiff and Respondent, (Super. Ct. No. CRF01-
0000643)
v.
VICHUAN HER,
Defendant and Appellant.
A jury found defendant Vichuan Her guilty of murder, assault with a
semiautomatic firearm, allowing another to discharge a firearm from the car he was
driving, and discharging a firearm at an occupied vehicle. This appeal arises from the
second petition defendant filed for resentencing under Penal Code,1 section 1172.6.2 The
1 Undesignated statutory references are to the Penal Code.
2 Defendant filed both petitions under former section 1170.95. The Legislature amended
section 1170.95, effective January 1, 2022, under Senate Bill No. 775 (2021-2022 Reg.
Sess.) (Stats. 2021, ch. 551). Further, effective June 30, 2022, the Legislature
renumbered section 1170.95 to section 1172.6, without substantive change (Stats. 2022,
ch. 58, § 10). Unless otherwise noted, citations in this opinion are to the current version
of the provision as codified in section 1172.6.
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trial court denied the first petition on the merits because defendant was not convicted
under the felony-murder rule or under the natural and probable consequences doctrine.
Defendant did not appeal that ruling. The trial court denied the second petition noting it
had already decided the issue. We shall affirm the judgment on the merits.
FACTUAL AND PROCEDURAL BACKGROUND
An information charged defendant with first degree premeditated murder (§ 187,
subd. (a)—count I) with an enhancement defendant was armed with a firearm (§ 12022,
subd. (a)(1)), two counts of assault with a semiautomatic firearm (§ 245, subd. (b)—
counts II & V), permitting another to discharge a firearm from the car he owned or drove
(§ 12034, subd. (b)—count III), and discharging a firearm at an occupied car (§ 246—
count IV). The information alleged enhancements that all counts were committed for the
benefit of a street gang. (§ 186.22.) As to counts I and IV, the information alleged an
enhancement that at least one principal intentionally and deliberately discharged a
firearm causing great bodily injury. (§ 12022.53, subds. (d) & (e).)
The basic facts of the case come from our prior unpublished opinion. (People v.
Her (July 29, 2003, C042210) [nonpub. opn.].)3 On October 13, 2001, Wong Lee was
driving in a car with three of his friends. When Lee stopped at an intersection, he looked
in his rearview mirror and said, “Look, Vichuan.” Defendant was driving the car behind
Lee’s car. Defendant pulled up alongside Lee’s car. When the light turned green, Lee
turned right, away from defendant. Defendant cut across a lane of traffic to follow Lee.
The front passenger in defendant’s car pointed a gun out of the window and fired several
shots toward Lee’s car. Lee died as a result of a single gunshot wound to his head.
At trial, the trial court gave the jury the following instructions for the crime of
murder:
3 On defendant’s motion, we also took judicial notice of our record in the appeal of this
underlying case.
2
“[CALJIC 3.00:] Persons who are involved in committing 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, one, those who directly and actively
commit the act constituting the crime or, two, those who aid and abet the commission of
the crime.
“[CALJIC 3.01:] A person aids and abets the commission of the crime when he or
she, one, with 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.
“Mere presence at the scene of a crime does not itself assist the commission of the
crime and does not amount to aiding and abetting. Mere knowledge that a crime is being
committed and the failure to prevent it does not amount to aiding and abetting.”
“[CALJIC 8.10:] Defendant is accused in Count I of having committed the crime
of murder, a violation of Penal Code Section 187. Every person who unlawfully kills a
human being with malice aforethought is guilty of the crime of murder in violation of
Section 187 of the Penal Code. In order to prove this crime, each of the following
elements must be proved: One, a human being was killed; two, the killing was unlawful;
and, three, the killing was done with malice aforethought.
“[CALJIC 8.11:] Malice may be either express or implied. Malice is express
when there is manifested an intention unlawfully to kill a human being. Malice is
implied when the killing resulted from an intentional act, the natural consequences of the
act are dangerous to human life and the act was deliberately performed with the
knowledge of the danger to and with conscious disregard for human life. When it is
shown that a killing resulted from the intentional doing of an act with express or implied
malice, no other mental state need be shown to establish the mental state of malice
aforethought.
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“The mental state substituting malice aforethought does not necessarily require
any ill will or hatred of the person killed. The word ‘aforethought’ does not imply
deliberation or the lapse of considerable time. It only means that the required mental
state must precede rather than follow the act.”
“[CALJIC 8.20:] Murder which is perpetrated by any kind of willful, deliberate
and premeditated killing with express malice aforethought is murder of the first degree.”
“[CALJIC 8:25.1:] Murder which is perpetrated by means of discharging a
firearm from a motor vehicle intentionally at another person outside of the vehicle when
the perpetrator specifically intended to inflict death is murder of the first degree.”
Notably, the trial court did not instruct the jury on felony murder or the natural and
probable consequences doctrine of liability.
On the prosecution’s motion, the trial court dismissed the street gang
enhancements and the enhancements at least one principal intentionally and deliberately
discharged a firearm causing great bodily injury.
The jury found defendant guilty of first degree murder and found in committing
the murder defendant “did deliberate and premeditate.” The jury also found defendant
“was a principal in discharging a firearm from a motor vehicle intentionally at another
person outside of the vehicle with the specific intent to inflict death” and “in the
commission of the above-offense a principal was armed with a firearm.” The jury found
defendant guilty on the remaining counts as well. The trial court sentenced defendant to
an aggregate prison term of 36 years eight months to life.
Defendant filed his first petition for resentencing under section 1172.6 in February
2020, alleging he was convicted of murder pursuant to the felony-murder rule, or the
natural and probable consequences doctrine, which now could not support conviction due
to the change in the law. The trial court appointed counsel for defendant and set a
briefing schedule. The prosecution opposed the petition arguing defendant had not been
convicted under a theory of felony murder or natural and probable consequences. The
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trial court denied the petition in November 2021 in a written order. The text of the first
paragraph of the ruling recited the jury’s findings on the murder conviction as set forth in
the verdict forms. The trial court found defendant was ineligible for resentencing
because he was “not convicted of felony murder based upon the natural and probable
consequences doctrine as alleged . . . . Instead, defendant . . . was convicted in Count 1
of first-degree murder with premeditation and deliberation. The felony murder rule and
natural and probable consequences jury instructions were not even given in his trial
concerning the murder charge.”
Defendant did not appeal this ruling, but rather filed a second petition for
resentencing under section 1172.6 in April 2022. He again argued he was convicted
under a theory that allowed the prosecution to proceed under the felony-murder rule, the
doctrine of natural and probable consequences, or another theory under which malice was
imputed to him solely based upon his participation in a crime. The trial court summarily
denied the second petition stating the matter had been previously litigated in 2021 and
attached its original ruling.
Defendant timely appealed the ruling on the second petition.
DISCUSSION
Defendant contends the trial court relied on inadmissible evidence and engaged in
factfinding by using the factual summary from our prior direct appellate opinion to
conclude defendant was ineligible for resentencing as a matter of law. We disagree.
Senate Bill No. 1437 (Reg. Sess. 2017-2018), which became effective on January
1, 2019, “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.”
(Stats. 2018, ch. 1015, § 1, subd. (f).)
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Section 188, which defines malice, now provides in part: “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime
shall act with malice aforethought. Malice shall not be imputed to a person based solely
on his or her participation in a crime.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.)
Section 189, subdivision (e) now limits the circumstances under which a person may be
convicted of felony murder: “A participant in the perpetration or attempted perpetration
of a felony listed in subdivision (a) [defining first degree murder] in which a death occurs
is liable for murder only if one of the following is proven: [¶] (1) The person was the
actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill,
aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the
actual killer in the commission of murder in the first degree. [¶] (3) The person was a
major participant in the underlying felony and acted with reckless indifference to human
life, as described in subdivision (d) of Section 190.2.” (Stats. 2018, ch. 1015, § 3.)
Senate Bill No. 1437 also added former section 1170.95 (now section 1172.6),
which allows those convicted of felony murder or murder under the natural and probable
consequences theory to petition the trial court to vacate the conviction and resentence the
defendant. (§ 1172.6, subd. (a).)
“Upon receiving a petition in which the information required by . . . subdivision
[(b)] is set forth . . . if the petitioner has requested counsel, the court shall appoint counsel
to represent the petitioner.” (§ 1172.6, subd. (b)(3).) “After the parties have had an
opportunity to submit briefings, the court shall hold a hearing to determine whether the
petitioner has made a prima facie case for relief. If the petitioner makes a prima facie
showing that the petitioner is entitled to relief, the court shall issue an order to show
cause.” (§ 1172.6, subd. (c).)
The prima facie inquiry under section 1172.6 subdivision (c) is “limited.”
(People v. Lewis (2021) 11 Cal.5th 952, 971.) The court “ ‘ “takes petitioner’s factual
allegations as true and makes a preliminary assessment regarding whether the petitioner
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would be entitled to relief if his or her factual allegations were proved.” ’ ” (Ibid.)
Although the court may rely on the record of conviction (including a prior appellate court
opinion) in determining whether defendant has made a prima facie showing, the court
“should not engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ” (Id. at p. 972.)
Defendant argues the trial court impermissibly relied upon our prior opinion and
engaged in factfinding in making its finding defendant was ineligible for resentencing at
the prima facie stage of this case. We disagree.
While the trial court mentioned our prior opinion in its ruling, it also stated it had
reviewed the contents of its own file. In its ruling, the trial court quoted specifically from
the jury’s findings from the underlying trial. This recital demonstrates the trial court was
both aware of the record of conviction in its files and properly took into account the facts
contained in that record when it made its ruling. On defendant’s motion in this appeal,
we also incorporated our record in the appeal of the underlying case. That file, which is
the trial court record, includes the jury instructions the trial court gave to the jury at trial
and the jury’s verdict forms.
“In many instances, additional information from the record will establish that a
defendant’s conviction was not based on the natural and probable consequences doctrine,
and that the jury must have convicted the defendant on the basis of his own malice
aforethought. For example, if the jury did not receive an instruction on the natural and
probable consequences doctrine, the jury could not have convicted the defendant on that
basis, and the petition should be summarily denied.” (People v. Offley (2020)
48 Cal.App.5th 588, 599.)
Here, defendant failed to make the requisite prima facie showing of entitlement to
relief under section 1172.6. The trial court did not instruct the jury on felony murder or
the natural and probable consequences doctrine or any other theory of imputed malice.
Moreover, the jury expressly found defendant was “a principal discharging a firearm
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from a motor vehicle intentionally at another person outside the vehicle with the specific
intent to inflict death.” Therefore, because the trial court did not instruct the jury on
felony murder or natural and probable consequences, but rather instructed them they had
to find defendant had an intent to kill to be guilty of murder, and the jury found exactly
that, defendant is ineligible for resentencing as a matter of law. (People v. Soto (2020)
51 Cal.App.5th 1043, 1055, 1059; People v. Offley, supra, 48 Cal.App.5th at p. 599.)4
Nor is this result altered by defendant’s argument the trial court’s use of our prior
appellate opinion ran afoul of the language of section 1172.6, subdivision (d)(3). As
noted by the trial court denying defendant’s first section 1172.6 petition and affirmed by
this court now, defendant’s record of conviction affirmatively demonstrates his
ineligibility for relief as a matter of law. Accordingly, his petition has not reached the
order to show cause hearing stage, and thus, section 1172.6, subdivision (d)(3)’s
prescription for the rules of evidence at that proceeding has no application here.
(People v. Lewis, supra, 11 Cal.5th at p. 972.)
4 While this case was pending, defendant filed a motion to deem his current notice of
appeal timely and constructively filed as to the denial of his first petition for
resentencing. He (1) argues the trial court did not advise him of his appellate rights;
(2) cites In re Benoit (1973) 10 Cal.3d 72 for the proposition he relied on his attorney’s
promise to file a timely notice; and (3) cites section 1240.1 that his attorney had a
statutory duty to file a notice of appeal where arguably meritorious grounds exist for
reversal or modification of the judgment. We deny the motion. The trial court had no
obligation to notify defendant of his appellate rights when it denied his postjudgment
motion. (Cal. Rules of Court, rule 4.305.) Defendant presented no evidence he relied on
his counsel’s promise to file a notice of appeal. (In re Benoit, at p. 89.) As demonstrated
ante, his attorney did not have a statutory duty to file an earlier appeal because we
conclude defendant’s appeal was not based on arguably meritorious grounds because his
jury was not instructed with either the felony-murder rule or the natural and probable
consequences doctrine. Because we reject defendant’s appeal on the merits, we decline
to reach the Attorney General’s argument the trial court’s initial ruling had a collateral
estoppel effect.
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DISPOSITION
The judgment is affirmed.
/s/
BOULWARE EURIE, J.
We concur:
/s/
RENNER, Acting P. J.
/s/
EARL, J.
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