Filed 11/29/21 P. v. Hoong 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C093483
Plaintiff and Respondent, (Super. Ct. No. 03F08566)
v.
TONY HOONG,
Defendant and Appellant.
Defendant Tony Hoong appeals the trial court’s denial of his Penal Code section
1170.95 resentencing petition. 1 He contends the trial court erred in concluding that
defendant failed to make a prima facie case for relief based on its finding that the
evidence in the record would be sufficient to support a murder conviction under the
enacting legislation, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015,
1 Undesignated statutory references are to the Penal Code.
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§ 4). The Attorney General concedes the issue and asks this court to reverse the trial
court’s erroneous order and remand the matter for proceedings consistent with section
1170.95. We accept the People’s concession and will reverse the order and remand.
PROCEDURAL BACKGROUND
In 2005, a jury found defendant and his codefendant guilty of first degree murder
with related gang and firearm enhancements (§§ 187, subd. (a), 186.22, subd. (b)(1),
12022.53, subds. (d), (e)). On direct appeal, this court affirmed defendant’s murder
conviction but struck the enhancements. The facts underlying the conviction are not
relevant to our disposition on appeal and are therefore not recounted here.
On November 5, 2019, this court held in an unpublished opinion that defendant
was entitled to habeas relief on his first degree murder conviction. (In re Hoong (Nov. 5,
2019, C085638) [nonpub. opn.].) Relief was required because this court could not
determine beyond a reasonable doubt that the jury in defendant’s case did not rely on the
natural and probable consequences doctrine to find defendant guilty of first degree
murder. The first degree murder conviction was vacated and the matter remanded “to the
trial court with directions to allow the People to accept a reduction of the conviction to
second degree murder, or to elect to retry [defendant] for first degree murder under a
theory or theories other than natural and probable consequences.” (In re Hoong, supra,
C085638.) On July 29, 2020, defendant was resentenced on one count of second degree
murder to a total term of 15 years to life.
In March 2020, defendant filed a petition for resentencing under newly enacted
section 1170.95. The court then appointed counsel for defendant, and both parties
subsequently submitted briefing on the applicability of section 1170.95. The trial court
issued a written order denying resentencing, observing that this court “had concluded, in
the original appellate opinion, that the evidence was sufficient for a jury to have
convicted defendant [ ] of first degree murder, based on direct aiding and abetting a first
degree murder, a theory that has survived [Senate Bill No.] 1437.” The court then
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discussed how the evidence in the record was “sufficient for a jury to conclude, beyond a
reasonable doubt, that defendant [ ] directly aided and abetted” both “an express malice
murder” and “an implied malice murder.” In support of its order, the court expressly
relied on People v. Garcia (2020) 57 Cal.App.5th 100, review granted February 10, 2021,
S265692 (Garcia). Noting a split of authority in the Courts of Appeal on the issue, the
trial court found Garcia persuasive and concluded that “[u]nder that substantial evidence
view, defendant [ ] has failed to set forth a prima facie case for relief.” Finally, the court
concluded that this court’s prior determination that defendant was entitled to a reduction
of his conviction was not controlling on this matter.
Defendant timely appealed.
DISCUSSION
Defendant contends the trial court erred in summarily denying his petition without
issuing an order to show cause and conducting an evidentiary hearing. Conceding the
error, the People posit that the trial court misconstrued the requirement in section 1170.95
that the petitioner state a prima facie case for relief. The parties request that this court
reverse the order and remand the matter with instructions to issue an order to show cause
and to hold an evidentiary hearing on the merits of the petition. We agree with the parties
and will reverse the order with instructions.
Because this issue of statutory interpretation presents a question of law, our review
is de novo. (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.) To obtain relief pursuant
to section 1170.95, an offender must file a petition in the sentencing court setting forth
his eligibility under the section, including that he was prosecuted under a theory of felony
murder or murder under the natural and probable consequences doctrine, 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,
but 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)(1)-(3); see also
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§ 1170.95, subd. (b)(1)(A).) 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).) “Where the petition complies with subdivision (b)’s three
requirements, then the court proceeds to subdivision (c) to assess whether the petitioner
has made ‘a prima facie showing’ for relief. [Citation.] [¶] If the trial court determines
that a prima facie showing for relief has been made, the trial court issues 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.’ [Citation.]
. . . 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.’ [Citation.]”
(People v. Lewis (2021) 11 Cal.5th 952, 960 (Lewis).)
Before our Supreme Court’s decision in Lewis, a number of courts “read section
1170.95, subdivision (c)’s two references to ‘a prima facie showing’ to require two
distinct, sequential inquiries: one ‘that petitioner “falls within the provisions” of the
statute,’ and a second ‘ “that he or she is entitled to relief.” ’ ” (Lewis, supra, 11 Cal.5th
at p. 961.) The Lewis court rejected this interpretation of section 1170.95, subdivision
(c), and concluded that subdivision (c) describes only a single prima facie showing.
(Lewis, at p. 962.) The court held that, “[c]onsidering subdivision (c)’s language in the
context of section 1170.95 as a whole [citation], subdivision (c) clearly describes a single
process.” (Lewis, at p. 962.) Therefore, under the statute, once defendant files a facially
sufficient petition laying out his eligibility under the section and requests counsel, he is
entitled to appointment of counsel and to be heard on the subdivision (c) inquiry. (Lewis,
at p. 970.)
Here, it is undisputed by the parties that defendant’s petition established a prima
facie showing he is entitled to relief. (§ 1170.95, subd. (c).) As required, his petition
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alleged a complaint, information, or indictment was filed against him allowing the
prosecution to proceed under a theory of felony murder or murder under the natural and
probable consequences doctrine; he was convicted of first or second degree murder
following a trial; and he 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).)
And the parties do not argue, nor does the record before us conclusively establish,
defendant was categorically ineligible for relief as a matter of law. (See Lewis, supra, 11
Cal.5th at pp. 971, 972 [holding that the trial court “may look at the record of conviction
after the appointment of counsel to determine whether a petitioner has made a prima facie
case for section 1170.95 relief” but should not engage in factfinding or make credibility
determinations before an order to show cause issues].)
We recognize that prior to the Supreme Court’s decision in Lewis, some Courts of
Appeal approved the summary denial of a section 1170.95 petition based on a substantial
evidence review of the record of conviction. (See, e.g., Garcia, supra, 57 Cal.App.5th at
p. 118, rev.gr.).) According to Garcia, a trial court may summarily deny a section
1170.95 petition even when the petitioner’s assertions are not “ ‘conclusively refut[ed]
. . . as a matter of law’ ” if substantial evidence in the record “supports a murder
conviction under current law.” (Garcia, at p. 116.) Garcia cites People v. Duke (2020)
55 Cal.App.5th 113, review granted January 13, 2021, S265309, as authority for using
the substantial evidence test to summarily deny a section 1170.95 petition. Duke,
however, involved a section 1170.95 petition that was denied after the trial court
conducted a full evidentiary hearing. (Duke, supra, at p. 119.) An evidentiary hearing
conducted under section 1170.95, subdivision (d) is separate from, and occurs after, the
prima facie showing required under section 1170.95, subdivision (c). At the evidentiary
hearing, the prosecution must prove beyond a reasonable doubt that the petitioner is
ineligible for resentencing. (§ 1170.95, subd. (d).) Several courts have explicitly
disagreed with Duke’s application of the substantial evidence test at the evidentiary
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hearing, but even Duke does not advocate conducting a substantial evidence review at the
prima facie stage.
We conclude the trial court’s use of a substantial evidence test at the prima facie
stage in this case was in error. (Lewis, supra, 11 Cal.5th at p. 974.) His petition asserted
facts which, if accepted as true, fulfilled the requirements for relief, and there were no
readily ascertainable facts from the record demonstrating that, as a matter of law, he was
not entitled to relief. Therefore, the trial court erred by not issuing an order to show
cause and holding an evidentiary hearing before evaluating and weighing the evidence
presented and ruling on the merits of defendant’s petition.
DISPOSITION
The order denying defendant’s section 1170.95 petition is reversed. The matter is
remanded to the superior court with directions to issue an order to show cause and hold
an evidentiary hearing on defendant’s petition.
KRAUSE , J.
We concur:
RAYE , P. J.
MAURO , J.
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