People v. Diep CA4/3

Filed 8/11/21 P. v. Diep CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G059988
v. (Super. Ct. No. 05ZF0092)
JAMES DIEP, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Andre
Manssourian. Affirmed.
Kristen Owen, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
We appointed counsel to represent James Diep on appeal. Counsel filed a
brief that set forth the facts of the case. Counsel did not argue against her client but
advised the court she found no issues to argue on his behalf.
Counsel filed a brief following the procedures outlined in People v. Wende
(1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that
sets forth a summary of proceedings and facts but raises no specific issues. Under these
circumstances, the court must conduct an independent review of the entire record. When
the appellant himself raises specific issues in a Wende proceeding, we must expressly
address them in our opinion and explain why they fail. (People v. Kelly (2006)
40 Cal.4th 106, 110, 120, 124.)
Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the
court with its independent review, counsel provided the court with information as to
issues that might arguably support an appeal. Counsel raised only one issue—whether
Diep made a prima facia showing of eligibility for resentencing under Penal Code section
1170.95 (all further statutory references are to the Penal Code).
We gave Diep 30 days to file written argument on his own behalf, and he
did. In his supplemental brief, Diep argued relief under section 1170.95 should not be
limited to persons convicted of felony murder or murder under a natural and probable
consequences theory, but should include persons convicted “under any other theory
which malice is imputed to a person based solely on that persons participation in a
crime.” (Bold omitted.)
FACTS
A detailed recitation of the facts is set forth in the prior opinion in this case.
(People v. Diep (June 5, 2009, G039379) [nonpub. opn.] (Diep).) A jury convicted Diep
of first degree murder (§ 187, subd. (a)) (count 1), attempted murder (§§ 664, subd. (a),
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187, subd. (a)) (count 2), and street terrorism (§ 186.22, subd. (a)) (count 3). The jury
found not true special circumstances that count 1 was a murder by drive-by shooting
(§ 190.2, subd. (a)(21)), or was committed for a criminal street gang (§ 190.2, subd.
(a)(22)). The jury also found not true Diep committed count 2 willfully, deliberately, and
with premeditation. However, as to counts 1 and 2, the jury found it true Diep was a
gang member who vicariously discharged a firearm causing death (§ 12022.53, subds.
(d), (e)(1)), and he committed the offenses for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)).
There was no evidence Diep fired the shotgun, and the prosecutor
proceeded strictly on the theory of aiding and abetting. The jury was not instructed on
vicarious liability under the felony murder rule or the theory of natural and probable
consequences.
DISCUSSION
Section 1170.95 allows “[a] person convicted of felony murder or murder
under a natural and probable consequences theory [to] file a petition” to seek to have that
“murder conviction vacated and to be resentenced on any remaining counts” if certain
conditions are met. (§ 1170.95, subd. (a).) The statute did not change or alter the law
regarding the criminal liability of direct aiders and abettors of murder because such
persons necessarily “know and share the murderous intent of the actual perpetrator.”
(People v. McCoy (2001) 25 Cal.4th 1111, 1118; see People v. Chiu (2014) 59 Cal.4th
155, 167 [direct aider and abettor “acts with the mens rea required for first degree
murder”] superseded by statute in part as stated in People v. Gentile (2020) 10 Cal.5th
830, 849.) One who directly aids and abets another who commits murder is thus liable
for murder under the new law just as he or she was liable under the old law.
Diep urges this court to expand section 1170.95’s provisions. We decline
his invitation. In interpreting a statute, we first look at the words the Legislature used.
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“‘“[I]f the statutory language is not ambiguous, then . . . the plain meaning of the
language governs.”’ [Citation.]” (People v. Colbert (2019) 6 Cal.5th 596, 603.)
Section 1170.95’s language is quite clear. It affords relief for those persons
convicted of felony murder or murder under a natural and probable consequences theory.
It does not provide relief for persons under any other theory which malice is imputed to a
person based solely on that person’s participation in a crime. In light of section
1170.95’s plain language, which applies only to qualifying defendants convicted of
felony murder or murder under a natural and probable consequences theory, we conclude
Diep is statutorily ineligible from seeking relief under section 1170.95.
DISPOSITION
The judgment is affirmed.
O’LEARY, P. J.
WE CONCUR:
MOORE, J.
GOETHALS, J.
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