People v. Viengvilai CA1/2

Filed 2/16/21 P. v. Viengvilai CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 TWO
THE PEOPLE,
Plaintiff and Respondent,
A158269
v.
PLAO VIENGVILAI, (Contra Costa County
Super. Ct. No. 59101361)
Defendant and Appellant.
Plao Viengvilai appeals from denial of the petition he filed in propria
persona to recall and vacate his conviction under Penal Code section
1170.95.1 His petition asserts he had been convicted of murder in the second
degree under the felony murder rule or the natural and probable
consequences doctrine, and therefore could no longer be held liable due to
recent amendments to sections 188 and 189. (Stats. 2018, ch. 1015, §§ 2–4.)
Appellant’s court-appointed counsel has filed a brief raising no legal
issues and asking this court to independently review the record pursuant to
People v. Wende (1979) 25 Cal.3d 436. Counsel declares that she advised
appellant she will be filing a brief pursuant to the procedures prescribed in
All statutory references are to the Penal Code unless otherwise
1
indicated.
1
Wende, provided appellant a copy of that brief, and advised appellant that he
may request this court to relieve her as counsel.2
This appeal is authorized by section 1237, subdivision (b) and rule
8.304 of the California Rules of Court.
FACTS AND PROCEEDINGS BELOW
On April 29, 1991, appellant was convicted of murder in the second
degree (§ 187, subd. (a)) and the jury found he personally used a firearm in
the commission of the offense. (§ 12022.5.)
In July 1992, we issued an unpublished opinion affirming appellant’s
conviction. (People v Viengvilai (July 24, 1992, A053566) (Viengvilai).)
In the present proceeding, Contra Costa Superior Court Judge John W.
Kennedy took judicial notice of our prior opinion. (Evid. Code, § 452; Cal.
Rules of Ct., rule 8.1115(b).) As stated in People v. Brimmer (2014) 230
Cal.App.4th 782, 800, the “court’s unpublished opinion in defendant’s prior
underlying appeal is sufficient evidence of the record of conviction.”
In his order denying appellant’s petition for resentencing, Judge
Kennedy paraphrased the portion of our opinion describing the facts of
appellant’s 1991 offense, as follows:
“Viengvilai and his fellow gang members sought revenge against an
Oakland gang for a perceived wrong done to a Richmond cohort. Viengvilai
loudly stated, ‘Let’s go shoot some Oakland people.’ He brought along a gun,
a 22 with a sawed-off barrel, under his trench coat as he and his Richmond
2 Counsel’s declaration does not, however, state that she advised
appellant that he may himself file a supplemental brief in his own behalf
within the specified period. For reasons that shall become apparent,
counsel’s failure to provide appellant that advice, if indeed she did fail, is not
prejudicial, as it is inconceivable such a brief would result in a more favorable
result for appellant.
2
gang approached the auditorium where the Oakland gang members were
waiting. At one point, Viengvilai started shooting his gun at the Oakland
gang members while yelling, ‘Fuck you. Go back to Oakland . . . . Die.’ As he
and his fellow gang members drove away, Viengvilai fired at them two or
three times. The victim was shot in the back of the head and died. A .22
[caliber] bullet was removed from his brain.
“The defendant at trial contested that his actions were not the
proximate cause of death of the victim. He presented evidence that ‘the
victim was not killed by the shots [defendant] fired, but by some[one] else’s
shots in part of a shootout between the rival gangs.’ ([Citing Viengvilai,
supra, A053566], at p. 3.) The prosecution’s theory at trial was that
defendant was ‘at the scene of and guilty of murder, whether as the person
firing the fatal shot or as an active participant in the shooting.’ (Id. at p. 8.)
The Court of Appeal aptly concluded that the prosecution’s evidence showed
[defendant] ‘was guilty of murder because he actually fired the bullet which
killed the victim. . . . [Defendant presented evidence that] showed he
participated in a shootout with other gang members, in the course of which
the victim was killed. Even under this defense, . . . [defendant’s] act would
. . . be a proximate cause of death of the victim and he was therefore guilty of
a homicide.’ (Id. at p. 4 (emphasis added).)”
The criminal complaint filed against appellant in 1991, and the
instructions given the jury that convicted him, shows that he was neither
charged with murder nor convicted of second degree murder under a theory of
felony murder or the natural and probable consequences doctrine.
Senate Bill No. 1437 (2017–2018 Reg. Sess.), enacted in 2018, added
section 1170.95, and altered the principle of felony murder in California by
amending sections 188 and 189. As amended, section 189 now provides,
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among other things, that a participant in the perpetration of specifies felonies
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.”
Section 1170.95, provides that a person convicted of felony murder or
murder under a natural and probable consequence theory may 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 or accepted a plea offer in lieu of a
trial at which the petitioner could be convicted for first 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.”
In determining whether appellant made a prima facie case that he is
eligible for resentencing under section 1170.95, the court considered, in
addition to our prior opinion, the pleadings of the parties, and the entire
record of conviction from the trial court (§ 1170.95, subd. (c)), including the
information, abstract of judgment, jury instructions, jury verdicts, and court
minute orders. The court noted that appellant was not convicted of felony
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murder or under the natural and probable consequence theory, as the jury
received no instructions on either theory.
Judge Kennedy’s order concluded that appellant “was convicted of
implied malice second degree murder, and that theory of culpability remains
viable after [Senate Bill No.] 1437. On the facts, a rational juror could find
that Viengvilai harbored a conscious disregard for life sufficient to find
implied malice for a conviction for second degree murder. The jury’s
determination that Viengvilai personally used a firearm further supports the
court’s conclusion.” Accordingly, Judge Kennedy also concluded, “Viengvilai
could be convicted under the new law. (§§ 188[, subd.] (a)(2), (b), 189[, subd.]
(a)(3), 1170.95[, subd.] (3); People v. Chun (2009) 45 Cal.4th 1172, 1184 . . . ;
People v. Knoller (2007) 41 Cal.4th 139, 143 . . . ; People v. Woods (1991) 226
Cal.App.3d 1037, 1048. . . .)”
Concluding appellant failed to allege any material fact that would show
he is eligible for resentencing relief under section 1170.95, subdivision (c),
and that he had a full and fair opportunity to develop such a showing, the
court declined to issue an order show cause and summarily denied appellant’s
petition.
DISPOSITION
Having reviewed the entire record, we find no legal issues that warrant
further briefing. Accordingly, the order summarily denying appellants
section 1170.95 petition is affirmed.
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_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Miller, J.
People v. Viengvilai (A158269)
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