Filed 10/29/20 P. v. Thao 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C089584
Plaintiff and Respondent, (Super. Ct. No. 95F01142)
v.
ENG THAO,
Defendant and Appellant.
A jury convicted defendant Eng Thao of first degree murder and conspiracy to
commit first degree murder for the 1994 murder of J.K., and this court affirmed the
conviction in 1998. In February 2019 defendant filed a petition for resentencing under
Penal Code section 1170.951 and requested the appointment of counsel. The trial court
found that defendant was ineligible for relief and denied the petition without holding a
hearing. Defendant appeals, arguing that the trial court improperly denied his section
1 Undesignated statutory references are to the Penal Code.
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1170.95 petition because the court did not follow proper procedures when it conducted an
independent inquiry without the benefit of briefs from the prosecution or defense counsel.
For the reasons set forth below, we conclude the trial court did not err in denying
defendant’s petition and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Following the 1994 killing of J.K., a jury found defendant guilty of first degree,
premeditated murder (§ 187, subd. (a)), conspiracy to commit first degree murder
(§ 182), and vehicle theft (Veh. Code, § 10851). The jury also found true special
allegations of gang and firearm use enhancements (§§ 186.22, subd. (b), 12022.5, subd.
(a)). The trial court sentenced defendant to state prison for 29 years to life. Following an
appeal, this court affirmed the judgment. On September 8, 1998, we issued a remittitur,
rendering the judgment final.
On February 21, 2019, defendant filed a petition to vacate his murder conviction,
citing section 1170.95. In the petition, defendant averred that a complaint or information
had been filed against him that allowed the prosecution to proceed under a theory of
felony murder or murder under the natural and probable consequences doctrine, and he
had been convicted of murder under one of those theories; he did not specify in the
petition which theory applied. He did not assert any new facts or evidence to support his
petition. He requested that the court appoint him counsel in the proceeding on the
petition. The district attorney filed an application for an extension of time to file a
response to defendant’s petition, which was granted.
Before the district attorney filed a response to the petition, the trial court
summarily denied the petition in a written order. The court found defendant had failed to
make a prima facie showing that he was eligible for relief under section 1170.95 because
“[t]he jury verdict for the first degree murder contains a specific finding by the jury that
defendant [] is guilty of Penal Code § 187(a) ‘Murder in the First Degree, a willful,
deliberate and premeditated killing with express malice aforethought.’ ” The court
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observed: “There was no jury instruction given on the natural and probable
consequences doctrine with regard to first degree murder. Nor was the jury instructed on
any felony murder theory with regard to first degree murder; rather, the felony murder
instruction was given only with regard to [the lesser included offense of] second degree
murder . . . .” The court further observed, “The only theory of first degree murder upon
which the jury was instructed was that of a ‘willful, deliberate and premeditated killing
with express malice aforethought,’ and that instruction included specific language
specifying that to find guilt of first degree murder the jury must find that defendant [] had
a ‘clear, deliberate intent . . . to kill.’ ” Having determined these facts from the record of
conviction, the trial court found “it is beyond a reasonable doubt that the jury
unanimously concluded that defendant [] had acted with specific intent to kill.” Thus, the
court denied his petition, concluding defendant was not entitled to relief under section
1170.95.
DISCUSSION
Defendant challenges the trial court’s summary denial of his petition. He contends
the court erred in concluding, based on his record of conviction, that he did not make a
prima facie showing without first appointing counsel or allowing briefing. The Attorney
General contends that because the trial court concluded defendant was ineligible for relief
as a matter of law, the court did not err in refusing to first appoint counsel or review
briefing from the parties.
A. Senate Bill No. 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on
January 1, 2019 (Bill 1437), revised the felony-murder rule in California “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).) The bill
amended section 188, which defines malice, and section 189, which defines the degrees
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of murder to address felony-murder liability; it also added section 1170.95, which
provides a procedure by which those convicted of murder can seek retroactive relief if the
changes in the law would affect their previously sustained convictions. (Stats. 2018,
ch. 1015, §§ 2-4; People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417; People v.
Lewis (2020) 43 Cal.App.5th 1128, 1133, review granted Mar. 18, 2020, S260598
(Lewis).)
Section 1170.95, subdivision (c) provides: “The court shall review the petition
and determine if the petitioner has made a prima facie showing that the petitioner falls
within the provisions of this section. If the petitioner has requested counsel, the court
shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a
response within 60 days of service of the petition and the petitioner may file and serve a
reply within 30 days after the prosecutor response is served. These deadlines shall be
extended for good cause. If the petitioner makes a prima facie showing that he or she is
entitled to relief, the court shall issue an order to show cause.” ( 1170.95, subd. (c).)
To make a prima facie showing, all three of the following conditions must 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 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.” (§ 1170.95,
subd. (a).)
Section 189 was amended to include new subdivision (e), which provides: “(e) A
participant in the perpetration or attempted perpetration of a felony [including rape,
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robbery, and burglary] 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.)
Bill 1437 also “added a crucial limitation to section 188’s definition of malice for
purposes of the crime of murder.” (People v. Verdugo (2020) 44 Cal.App.5th 320, 326,
review granted Mar. 18, 2020, S260493 (Verdugo).) Under new section 188, subdivision
(a)(3), “[m]alice shall not be imputed to a person based solely on his or her participation
in a crime.” “As a result, the natural and probable consequences doctrine can no longer
be used to support a murder conviction.” (Lewis, supra, 43 Cal.App.5th at p. 1135, rev.
granted.)
B. Analysis
Defendant contends the trial court erred by summarily denying his petition without
following procedures he claims newly enacted section 1170.95 mandates. In his view,
section 1170.95 does not permit a court to preliminarily determine whether a defendant
meets the statute’s prima facie criteria. Instead, upon receiving a section 1170.95
petition, the trial court must first appoint counsel, if requested, and permit the parties to
file responsive pleadings before determining whether the defendant has stated a prima
facie case of eligibility. Interpreting the statute as defendant urges would render the first
sentence of subdivision (c), which provides that “[t]he court shall review the petition and
determine if the petitioner has made a prima facie showing that the petitioner falls within
the provisions of this section,” mere surplusage. (See Delaney v. Superior Court (1990)
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50 Cal.3d 785, 799 [“a construction that renders a word surplusage should be avoided”];
see also People v. Woodhead (1987) 43 Cal.3d 1002, 1010 [“It is a settled axiom of
statutory construction that significance should be attributed to every word and phrase of a
statute, and a construction making some words surplusage should be avoided”].)
When interpreting statutory language, moreover, we do not examine language in
isolation but consider the context of the statutory framework as a whole. (Bruns v. E-
Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724.) “When the statutory framework
is, overall, chronological, courts will construe the timing of particular acts in relation to
other acts according to their location within the statute; that is, actions described in the
statute occur in the order they appear in the text.” (Lewis, supra, 43 Cal.App.5th at
pp. 1139-1140, rev. granted, citing KB Home Greater Los Angeles, Inc. v. Superior Court
(2014) 223 Cal.App.4th 1471, 1477 [statutory scheme’s sequential structure supports
interpretation that acts required by the statute occur in the same sequence].) Applying
this principle to section 1170.95, subdivision (c), the trial court must first determine
whether a petitioner has made a prima facie showing that he or she “falls within the
provisions” of the statute before appointing counsel, receiving briefs and then
determining whether the petitioner has made “a prima facie showing that he or she is
entitled to relief.” (§ 1170.95, subd. (c); Lewis, at p. 1140; see Verdugo, supra,
44 Cal.App.5th at p. 330, rev. granted [“That the Legislature intended this three-step
evaluation of a section 1170.95 petition is confirmed by the history of the legislation”].)
As other courts have recognized, “[a] prima facie showing of eligibility triggers
the trial court’s obligation to issue an order to show cause and either hold a hearing, give
the parties an opportunity to waive a hearing and stipulate to eligibility, or ‘[i]f there was
a prior finding by a court or jury that the petitioner did not act with reckless indifference
to human life or was not a major participant in the felony, the court shall vacate the
petitioner’s conviction and resentence the petitioner.’ ” (People v. Ramirez (2019)
41 Cal.App.5th 923, 929, citing § 1170.95, subds. (c), (d)(1) & (2).) That is, only after
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the trial court determines that a petitioner has made a sufficient prima facie showing that
he or she “falls within the provisions” of the statute is briefing done and a hearing held
where the prosecution “has the burden to prove beyond a reasonable doubt[] that [a]
petitioner is ineligible for resentencing.” (Ramirez, at p. 929; § 1170.95, subd. (d)(3).)
Where the court concludes that the petitioner does not fall within the provisions of the
statute, no purpose would be served by proceeding to the next stages (appointment of
counsel, response by the prosecutor, order to show cause), and summary denial of the
petition without a hearing is proper. Indeed, “ ‘[i]t would be a gross misuse of judicial
resources to require the issuance of an order to show cause or even appointment of
counsel based solely on the allegations of the petition, which frequently are erroneous,
when even a cursory review of the court file would show as a matter of law that the
petitioner is not eligible for relief.’ ” (Lewis, supra, 43 Cal.App.5th at p. 1138, rev.
granted; see People v. Cornelius (2020) 44 Cal.App.5th 54, 57-58, review granted
Mar. 18, 2020, S260410 [affirming summary denial of petition based on verdict, trial
transcript, and prior appeal].)
Our sister courts have further held that in determining whether a petitioner has met
his burden of demonstrating prima facie eligibility, a trial court may look to documents
that are part of the record of conviction or are otherwise in the court file. We agree. In
Verdugo, supra, 44 Cal.App.5th at page 330, review granted, the Court of Appeal held
that the trial court, in evaluating a petition under section 1170.95, should determine from
all readily ascertainable information “whether there is a prima facie showing the
petitioner falls within the provisions of the statute.” The court reasoned: “Although
subdivision (c) does not define the process by which the court is to make this threshold
determination, subdivisions (a) and (b) of section 1170.95 provide a clear indication of
the Legislature’s intent. . . . [S]ubdivision (b)(2) directs the court in considering the
facial sufficiency of the petition to access readily ascertainable information. The same
material that may be evaluated under subdivision (b)(2)—that is, documents in the court
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file or otherwise part of the record of conviction that are readily ascertainable—should
similarly be available to the court in connection with the first prima facie determination
required by subdivision (c).” (Verdugo, at p. 329.) The court further held that the
superior court should examine not only “the complaint, information or indictment filed
against the petitioner; the verdict form or factual basis documentation for a negotiated
plea; and the abstract of judgment,” but also any “court of appeal opinion, whether or not
published, [because it] is part of the [defendant’s] record of conviction.” (Id. at pp. 329-
330, 333.) In Lewis, the court looked to “analogous situations” in which trial courts are
tasked with a preliminary evaluation of prima facie eligibility for relief and noted that
trial courts in those settings “are permitted to consider their own files and the record of
conviction.” (Lewis, supra, 43 Cal.App.5th at pp. 1137-1138, rev. granted, citing, e.g.,
People v. Washington (2018) 23 Cal.App.5th 948, 953 [courts conducting initial
screening of petition for reclassification of qualifying felony convictions under § 1170.18
may review record of conviction]; In re Serrano (1995) 10 Cal.4th 447, 456 [trial court
may summarily deny habeas corpus petition based on facts in its file]; but see People v.
Cooper (2020) 54 Cal.App.5th 106, 109.)
As the trial court discussed, defendant was ineligible for relief because he had not
been convicted of felony murder or murder under a theory of natural and probable
consequences: “The only theory of first degree murder upon which the jury was
instructed was that of a ‘willful, deliberate and premeditated killing with express malice
aforethought,’ and that instruction included specific language specifying that to find guilt
of first degree murder the jury must find that defendant [] has a ‘clear, deliberate intent
. . . to kill.’ ” No instruction was given on either felony murder or the natural and
probable consequences doctrine. Defendant was therefore ineligible for relief under
section 1170.95, which applies only to those “convicted of felony murder or murder
under a natural and probable consequences theory.” (§ 1170.95, subd. (a).)
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Defendant alternatively argues that the trial court’s summary denial of his petition
violated his federal constitutional right to counsel under the Sixth Amendment.
However, defendant had no constitutional right to counsel at this stage of a section
1170.95 proceeding. This provision’s retroactive relief reflects an act of lenity by the
Legislature and is not subject to Sixth Amendment analysis. (Cf. People v. Anthony
(2019) 32 Cal.App.5th 1102, 1156 [no right to jury trial in proceedings under Bill 1437
because its retroactive relief is “an act of lenity that does not implicate defendants’ Sixth
Amendment rights”].)
Finally, defendant claims the summary denial of his petition violated his
procedural due process rights because it deprived him of procedures to which he was
entitled under section 1170.95. As discussed, however, the trial court’s summary denial
of appellant’s petition complied with section 1170.95’s procedures. Defendant has
therefore suffered no due process violation.
C. Harmless Error
There is no disagreement that had the trial court determined defendant made the
required prima facie showing, it would have then been required to appoint counsel for
him. (See § 1170.95, subd. (c).) Defendant’s argument is thus that after receiving his
petition, the trial court should have appointed counsel and deferred ruling on the petition
until the government had filed a response, and defendant—with the assistance of
counsel—a reply. But defendant has not offered any explanation for how the assistance
of counsel in drafting a reply brief could have produced a different result.
Defendant’s bare petition does not support a prima facie showing that he falls
within the provisions of section 1170.95. Further, as summarized by the trial court, his
record of conviction precludes it. (See Verdugo, supra, 44 Cal.App.5th at pp. 329-330,
rev. granted.) The trial court properly determined that defendant’s record of conviction
showed he did not fall within the provisions of section 1170.95 because “[t]he only
theory of first degree murder upon which the jury was instructed was that of a ‘willful,
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deliberate and premeditated killing with express malice aforethought,’ and that
instruction included specific language specifying that to find guilt of first degree murder
the jury must find that defendant [] has a ‘clear, deliberate intent . . . to kill.’ ” Even with
the benefit of counsel appointed to represent him in this appeal, defendant is patently
ineligible for relief under the statute.
Under these circumstances, even assuming appointment of counsel was required,
the trial court’s failure to do so was harmless beyond a reasonable doubt. (See People v.
Cornelius, supra, 44 Cal.App.5th at p. 58, rev. granted [rejecting contention that trial
court erred in ruling on § 1170.95 petition before appointing counsel where petitioner
was “indisputably ineligible for relief”].)
DISPOSITION
The judgment (order) denying the petition is affirmed.
/s/
RAYE, P. J.
We concur:
/s/
HULL, J.
/s/
MURRAY, J.
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