Filed 8/13/21 P. v. Soy CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B307805
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA074870)
v.
KIRIVUTHY SOY,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County. Gary J. Ferrari, Judge. Reversed and
remanded with directions.
Judith Kahn, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee and Michael C.
Keller, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Kirivuthy Soy appeals the summary denial of his petition
for resentencing under Penal Code section 1170.95.1 The parties
agree that because the record of conviction does not demonstrate
appellant is ineligible for relief as a matter of law, the trial court
summarily denied the petition in error. We agree and remand
the matter to the trial court for further proceedings, including the
issuance of an order to show cause and an evidentiary hearing in
accordance with section 1170.95, subdivision (d).2
FACTUAL3 AND PROCEDURAL BACKGROUND
Appellant Kirivuthy Soy and his twin brother, Kirivudy
(D. Soy), were jointly tried and convicted of the second degree
murder of Dara Ork. While appellant pointed a firearm at one of
Ork’s companions, D. Soy ran toward Ork and stabbed him. Ork
suffered eight stab wounds and died. (Soy, supra, B253692.)
At trial the jury was instructed that appellant could be
found guilty of murder either as a direct aider and abettor or
1 Undesignated statutory references are to the Penal Code.
2 On remand, appellant seeks reconsideration of his motion
for resentencing under Senate Bill No. 620. However, if the trial
court grants appellant’s section 1170.95 petition, the firearm
enhancement would necessarily be stricken as part of
resentencing, making appellant’s request moot. If the
resentencing petition is denied after an evidentiary hearing,
appellant would not be entitled to relief under Senate Bill
No. 620 because his conviction is final.
3 The statement of facts is drawn from this court’s decision
filed on September 14, 2015, in appellant’s direct appeal from his
conviction. (People v. Kirivudy Soy et al. (Sept. 14, 2015,
B253692) [nonpub. opn.] (Soy); People v. Cruz (2017) 15
Cal.App.5th 1105, 1110 [appellate opinion is part of the record of
conviction].)
2
under the natural and probable consequences doctrine if he aided
and abetted an assault with a deadly weapon. Finding appellant
and his brother guilty of second degree murder, the jury found
that D. Soy had personally used a deadly weapon, a knife
(§ 12022, subd. (b)(1)), and appellant had personally and
intentionally used a firearm (§ 12022.53, subd. (b)). The trial
court sentenced appellant to a term of 15 years to life plus 10
years for the use of a firearm. (Soy, supra, B253692.)
We affirmed the judgments of conviction as to both
defendants on direct appeal. Based on the evidence that D. Soy
stabbed Ork to death while appellant pointed a firearm at Ork’s
companion, we concluded “there was sufficient evidence to
support the finding that [appellant] aided and abetted D. Soy’s
crime.” We further noted that “even if the intended crime was
only an assault with a deadly weapon, the jury was also
instructed on aiding and abetting within the theory of natural
and probable consequences. (CALJIC No. 3.02.)” (Soy, supra,
B253692.)
On December 13, 2019, appellant filed a section 1170.95
petition seeking to have his murder conviction vacated, as well as
a request for resentencing under Senate Bill No. 620. Following
briefing and argument by the parties, the trial court summarily
denied the section 1170.95 petition for failure to state a prima
facie case for relief. Noting that appellant’s conviction was final,
the court also denied the request for resentencing under Senate
Bill No. 620 for lack of jurisdiction.
3
DISCUSSION
I. Appellant’s Petition Stated a Prima Facie Case
for Relief Under Section 1170.95, Thus
Necessitating Remand to the Trial Court to
Issue an Order to Show Cause and Conduct an
Evidentiary Hearing
A. Applicable Law
The Legislature enacted Senate Bill No. 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. Gentile (2020) 10 Cal.5th 830, 842 (Gentile); People v.
Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).) To
accomplish this objective with respect to the natural and probable
consequences doctrine, Senate Bill No. 1437 added section 188,
subdivision (a)(3), defining malice, to require that all principals
to murder must act with express or implied malice to be convicted
of that crime, with the exception of felony murder under section
189, subdivision (e). (Stats. 2018, ch. 1015, § 2; Gentile, at
pp. 842–843.) By these amendments, Senate Bill No. 1437 thus
altogether eliminated natural and probable consequences liability
for murder. (People v. Lewis (July 26, 2021, S260598)
___Cal.5th___ (Lewis) [2021 Cal. LEXIS 5258 at p. *2].)
Senate Bill No. 1437 also added section 1170.95 to provide
a procedure by which persons previously convicted of murder
under a natural and probable consequences theory may seek
retroactive relief if they could no longer be convicted of murder
4
because of the amendments to section 188. (Lewis, supra, ___
Cal.5th at p. ___ [2021 Cal. LEXIS 5258 at p. *2]; Gentile, supra,
10 Cal.5th at p. 843; Martinez, supra, 31 Cal.App.5th at pp. 722–
723.)
Subdivision (a) of section 1170.95 sets forth the
requirements for a facially sufficient petition. The petitioner
must aver that (1) the charging document “allowed the
prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine”;
(2) “petitioner was convicted of first or second degree murder”;
and (3) “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); People v. Drayton (2020)
47 Cal.App.5th 965, 973 (Drayton).) Subdivision (b) in turn
“describes where and how the petition must be filed and specifies
its required content,” including a declaration by the petitioner
that he or she “is eligible for relief according to the criteria set
out in subdivision (a).” (Drayton, at p. 973.) If a petition fails to
comply with subdivision (b)(1), ‘the court may deny the petition
without prejudice to the filing of another petition.’ (§ 1170.95,
subd. (b)(2).)” (Lewis, supra, ___ Cal.5th at p. ___ [2021 Cal.
LEXIS 5258 at p. *7].)
If a petition for resentencing under section 1170.95 meets
the requirements of subdivisions (a) and (b), the trial court
“proceeds to subdivision (c)[4] to assess whether the petitioner has
4 Section 1170.95, subdivision (c) provides in relevant part:
“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
5
made ‘a prima facie showing’ for relief. (§ 1170.95, subd. (c).)”
(Lewis, supra, ___ Cal.5th at p. ___ [2021 Cal. LEXIS 5258 at
p. *7].) At this stage, the trial court must accept briefing from
the parties before making its prima facie determination of
eligibility. (Lewis, supra, ___ Cal.5th at p. ___ [2021 Cal. LEXIS
5258 at pp. *21, 28–29].)
With the benefit of the parties’ briefing, the trial court may
then consider the record of conviction, including the jury
instructions, verdict form(s), and any special findings or
enhancement allegations the jury found true to determine if the
petition makes a prima facie showing of entitlement to relief.
(Lewis, supra, ___ Cal.5th at p. ___ [2021 Cal. LEXIS 5258 at
p. *29]; People v. Duchine (2021) 60 Cal.App.5th 798, 815
(Duchine).) Although “[t]he record of conviction will necessarily
inform the trial court’s prima facie inquiry under section 1170.95,
allowing the court to distinguish petitions with potential merit
from those that are clearly meritless . . . the prima facie inquiry
under subdivision (c) is limited.” (Lewis, supra, ___ Cal.5th at
p. ___ [2021 Cal. LEXIS 5258 at p. *30.) Thus, in conducting its
prima facie review, the trial court does not engage in factfinding,
but “ ‘ “takes petitioner’s factual allegations as true and makes a
preliminary assessment regarding whether the petitioner would
be entitled to relief if his or her factual allegations were proved.
If so, the court must issue an order to show cause.” ’ ” (Lewis, at
p. ___ [2021 Cal. LEXIS 5258 at p. *31, quoting Drayton, supra,
47 Cal.App.5th at p. 978.) “ ‘However, if the record, including the
court’s own documents, “contain[s] facts refuting the allegations
makes a prima facie showing that he or she is entitled to relief,
the court shall issue an order to show cause.”
6
made in the petition,” then “the court is justified in making a
credibility determination adverse to the petitioner.” ’ ” (Lewis, at
p. ___ [2021 Cal. LEXIS 5258 at p. *31, quoting Drayton, at
p. 979.)
If the trial court determines that petitioner has made a
prima facie showing for relief, the court must issue an order to
show cause, “and then must hold a hearing ‘to determine whether
to vacate the murder conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same
manner as if the petitioner had not . . . previously been
sentenced, provided that the new sentence, if any, is not greater
than the initial sentence.’ (§ 1170.95, subd. (d)(1).) ‘The
prosecutor and the petitioner may rely on the record of conviction
or offer new or additional evidence to meet their respective
burdens.’ (§ 1170.95, subd. (d)(3).) At the hearing stage, ‘the
burden of proof shall be on the prosecution to prove, beyond a
reasonable doubt, that the petitioner is ineligible for
resentencing.’ (§ 1170.95, subd. (d)(3).)” (Lewis, supra, ___
Cal.5th at p. ___ [2021 Cal. LEXIS 5258 at pp. *7–8].)
B. The trial court erred in denying appellant’s section
1170.95 petition without issuing an order to show cause
and conducting an evidentiary hearing.
Appellant’s petition satisfied the criteria for a facially
sufficient petition under section 1170.95, subdivisions (a) and (b),
and the record of conviction did not demonstrate ineligibility for
relief as a matter of law. Remand is required to enable the trial
court to issue an order to show cause and conduct an evidentiary
hearing under section 1170.95, subdivisions (c) and (d).
A defendant is ineligible for relief as a matter of law where
the record conclusively shows that the jury actually relied—and
7
the defendant’s murder conviction actually rests—upon on a
theory of liability that is unaffected by section 1170.95 (that is, on
the theory that defendant was the actual killer or directly aided
and abetted the killing).
Here, the record of conviction does not establish, as a
matter of law, that appellant is not eligible for relief. The record
shows that appellant did not personally kill Ork, but there was
substantial evidence to support both direct aiding and abetting
and natural and probable consequences theories of guilt. The fact
that substantial evidence supports appellant’s conviction on a
valid theory, however, does not mean that the record in this case
conclusively shows that the jury actually relied upon that valid
theory or that the jury did not rely on the invalid theory.
(Drayton, supra, 47 Cal.App.5th at p. 968 [in assessing whether a
petitioner has established a prima facie case, the trial court
“should accept the assertions in the petition as true unless facts
in the record conclusively refute them as a matter of law”], italics
added.) To the contrary, the record in this case reveals that the
jury was instructed on two theories—one valid under section
1170.95 (that is, direct aiding and abetting) and one invalid
under section 1170.95 (that is, natural and probable
consequences liability with the underlying crime being assault
with a deadly weapon)—and the jury’s general verdict finding of
guilt does not conclusively establish which of these theories the
jury actually relied upon in returning that verdict. (Cf. People v.
Edwards (2020) 48 Cal.App.5th 666, 674, review granted Jul. 8,
2020, S262481 [defendant is ineligible for section 1170.95 relief
as a matter of law if the jury is never instructed on an invalid
theory].)
8
In sum, because appellant has made a prima facie showing
that he is entitled to relief under section 1170.95 and the record
of conviction does not show him to be ineligible as a matter of
law, the trial court’s summary denial of his petition was in error.
The matter is therefore remanded to the trial court for issuance
of an order to show cause and an evidentiary hearing in
accordance with subdivisions (c) and (d) of section 1170.95.
C. At the evidentiary hearing under section 1170.95,
subdivision (d), the People must prove, beyond a
reasonable doubt, every element of liability for murder
under current law.
At the hearing following the trial court’s issuance of an
order to show cause, the prosecution will have the burden of
proving beyond a reasonable doubt that appellant is ineligible for
resentencing, and both parties may offer new or additional
evidence on that issue. (§ 1170.95, subd. (d)(3).) However, there
is currently a split in authority on what legal standard a trial
court should apply at a section 1170.95, subdivision (d) hearing.
In People v. Duke (2020) 55 Cal.App.5th 113, 123, review granted
Jan. 13, 2021, S265309, Division One of this District concluded
the applicable standard is akin to substantial evidence review.
That is, “[t]o carry its burden, the prosecution must . . . prove
beyond a reasonable doubt that the defendant could still have
been convicted of murder under the new law—in other words,
that a reasonable jury could find the defendant guilty of murder
with the requisite mental state for that degree of murder. This is
essentially identical to the standard of substantial evidence . . . .”
We rejected this view in People v. Fortman (2021) 64
Cal.App.5th 217 (Fortman), review granted July 21, 2021,
S269228. There, we held “that, at the hearing contemplated by
9
section 1170.95, subdivision (d), the People are required to prove
to the trial court beyond a reasonable doubt that the petitioner is
guilty of murder on a theory of murder valid after Senate Bill
1437’s enactment.” (Id., at p. 226, rev.gr.; see People v. Lopez
(2020) 56 Cal.App.5th 936, 949 (Lopez), review granted Feb. 10,
2021, S265974; Duchine, supra, 60 Cal.App.5th at p. 814 [“idea
that the prosecution must prove beyond a reasonable doubt that
there is substantial evidence in a prior record to support a
hypothetical finding of guilt on a theory of murder that may
never have been presented to a jury is beyond”
incomprehensible]; People v. Clements (2021) 60 Cal.App.5th 597,
617–618 (Clements), review granted Apr. 28, 2021, S267624;
People v. Hernandez (2021) 60 Cal.App.5th 94, 103; People v.
Rodriguez (2020) 58 Cal.App.5th 227, 241–244 (Rodriguez),
review granted Mar. 10, 2021, S266652.)5
5 In granting review in People v. Duke, supra, 55
Cal.App.5th 113 (review granted Jan. 13, 2021, S265309), the
Supreme Court framed the issue as follows: “Can the People
meet their burden of establishing a petitioner’s ineligibility for
resentencing under Penal Code section 1170.95, subdivision (d)(3)
by presenting substantial evidence of the petitioner’s liability for
murder under Penal Code sections 188 and 189 as amended by
Senate Bill No. 1437 (Stats. 2018, ch. 1015), or must the People
prove every element of liability for murder under the amended
statutes beyond a reasonable doubt?”
(https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScre
en.cfm?dist=0&doc_id=2332572&doc_no=S265309&request_toke
n=NiIwLSEmTkw3WzBdSCNNSElJUFQ0UDxTJSNOSzpRICAg
Cg%3D%3D [as of Aug. 10, 2021], archived at
; see Lopez, supra, 56 Cal.App.5th
936, rev.gr. [briefing deferred pending decision in Duke];
10
Our Supreme Court will resolve this split in Duke, but until
it does, “we join the growing chorus that requires an independent
finding by the trial court,” and proof beyond a reasonable doubt
by the People that the petitioner is ineligible for relief. (Fortman,
supra, 64 Cal.App.5th at p. 221, rev.gr.)
II. Appellant’s Request for Reconsideration of his
Motion to Strike the Firearm Enhancement in
Combination with Resentencing Is Moot
Appellant requests that on remand, should the trial court
resentence him under section 1170.95, the court be directed to
entertain his motion to strike the firearm enhancement imposed
under section 12022.53, subdivision (b). If the court grants
appellant’s section 1170.95 petition and resentences him,
however, the firearm enhancement would necessarily be stricken
because his only remaining conviction would be assault with a
deadly weapon, which is not one of the offenses enumerated in
section 12022.53. In that instance, appellant’s request would be
moot. On the other hand, if the trial court denies the
resentencing petition after an evidentiary hearing, appellant
would not be entitled to relief under Senate Bill No. 620 because
his conviction remains final.
Rodriguez, supra, 58 Cal.App.5th 227, rev.gr. [same]; Clements,
supra, 60 Cal.App.5th 597, rev.gr. [same].)
11
DISPOSITION
The postjudgment order is reversed. The matter is
remanded to the trial court for the issuance of an order to show
cause and further proceedings in accordance with Penal Code
section 1170.95, subdivision (d). If the trial court conducts an
evidentiary hearing in accordance with Penal Code section
1170.95, subdivision (d)(3), the court, acting as an independent
factfinder, must determine whether the prosecution has
established beyond a reasonable doubt that the petitioner is
guilty of murder on a theory of murder that remains valid after
the changes in the law engendered by Senate Bill No. 1437 and is
thus ineligible for relief.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
12