Filed 2/14/22 P. v. Soy CA2/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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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.
OPINION ON REMAND
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.
Larry Pizarro, 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 appealed the summary denial of his petition
for resentencing under Penal Code section 1170.95.1 The parties
agreed that because the record of conviction does not demonstrate
appellant is ineligible for relief as a matter of law, the superior
court summarily denied the petition in error. In our original
opinion we reversed the superior court’s order and remanded the
matter for further proceedings in accordance with section
1170.95, subdivision (d). (People v. Soy (Aug. 13, 2021, B307805)
(Soy II).) We further directed that if the superior court conducts
an evidentiary hearing in accordance with section 1170.95,
subdivision (d)(3), the court, acting as an independent fact finder,
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. (Soy II.) In so holding we rejected the substantial
evidence standard set forth in People v. Duke.2
The Attorney General filed a petition for review in the
California Supreme Court requesting that the court take the case
and hold it behind People v. Duke, S265309. The California
Supreme Court granted review and deferred further action
pending consideration and disposition of a related issue in People
v. Duke, S265309. On December 22, 2021, the California
Supreme Court transferred the case back to this court with
1 Undesignated statutory references are to the Penal Code.
2 People v. Duke (2020) 55 Cal.App.5th 113, review granted
Jan. 13, 2021, S265309, judgment vacated and cause remanded
for further consideration in light of Senate Bill No. 775 (Duke).
2
directions to vacate our prior decision and reconsider in light of
Senate Bill No. 775. (Stats. 2021, ch. 551, § 2.)
Accordingly, it is ordered that the previous opinion and
decision (Soy II) filed in this case is vacated. Upon
reconsideration in light of Senate Bill No. 775, we again conclude
that the superior court erred in denying appellant’s petition
under section 1170.95. We therefore remand the matter for the
issuance of an order to show cause and further proceedings in
accordance with section 1170.95, subdivision (d). If the superior
court conducts an evidentiary hearing in accordance with section
1170.95, subdivision (d)(3), the court, acting as an independent
fact finder, 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. 1437.3
FACTUAL4 AND PROCEDURAL BACKGROUND
Appellant Kirivuthy Soy and his twin brother, Kirivudy
(D. Soy), were jointly tried and convicted of the second degree
3 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.
4 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
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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
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
Cal.App.5th 1105, 1110 [appellate opinion is part of the record of
conviction].)
4
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.
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 (2021) 11 Cal.5th 952, 957 (Lewis).)
5
With the addition of section 1170.95, Senate Bill No. 1437
also allows a person previously convicted of murder under a
natural and probable consequences theory to seek resentencing if
he or she could no longer be convicted of murder because of the
amendments to section 188.5 (Lewis, supra, 11 Cal.5th at p. 957;
Gentile, supra, 10 Cal.5th at p. 843; Martinez, supra, 31
Cal.App.5th at pp. 722–723.)
When a petition for resentencing under section 1170.95
meets the basic requirements set forth in subdivision (b)(1) and
(2), the superior court must appoint counsel for petitioner if
requested (§ 1170.95, subd. (b)(3)), the prosecutor must then file a
response to the petition, and the petitioner may file a reply (id.,
subd. (c)). After the parties have had an opportunity to submit
briefing, the superior court is required to “hold a hearing to
determine whether the petitioner has made a prima facie case for
relief. If the petitioner makes a prima facie showing that the
petitioner is entitled to relief, the court shall issue an order to
show cause.” (Ibid.; Lewis, supra, 11 Cal.5th at p. 960.)
With the benefit of the parties’ briefing, the superior court
may then consider the petitioner’s 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, 11 Cal.5th at pp. 970–971; People v. Duchine
(2021) 60 Cal.App.5th 798, 815 (Duchine).) Although “[t]he
5As amended by Senate Bill No. 775, section 1170.95 now
also applies to persons previously convicted of attempted murder
or manslaughter under a natural and probable consequences
theory. (§ 1170.95, subd. (a).)
6
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, 11 Cal.5th at p. 971.)
Thus, in conducting its prima facie review, the superior 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.” ’ ” (Ibid., quoting
Drayton (2020) 47 Cal.App.5th 965, 978 (Drayton).)
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, attempted murder, or manslaughter
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); see Lewis, supra, 11 Cal.5th at p. 960.)
Subdivision (d)(3) further provides: “At the hearing to determine
whether the petitioner is entitled to relief, the burden of proof
shall be on the prosecution to prove, beyond a reasonable doubt,
that the petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189
made effective January 1, 2019.” (See Lewis, at p. 960.)
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B. The superior 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, subdivision (b), and the
record of conviction did not demonstrate ineligibility for relief as
a matter of law. Remand is required to enable the superior 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
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
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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.
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.
In our prior opinion, we noted a split in authority among
the Courts of Appeal on what legal standard a superior court
should apply at a section 1170.95, subdivision (d) hearing.
(Compare Duke, supra, 55 Cal.App.5th at p. 123, rev.gr., vacated
[“[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”]
with People v. Fortman (2021) 64 Cal.App.5th 217, 226, review
granted July 21, 2021, S269228, judgment vacated and cause
remanded for further consideration in light of Senate Bill No. 775
9
[“at the hearing contemplated by 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 No. 1437’s enactment”].)
Senate Bill No. 775 put that disagreement to rest.
“At the hearing to determine whether the petitioner is
entitled to relief” the parties may “offer new or additional
evidence to meet their respective burdens,” but it is the
prosecution’s burden “to prove, beyond a reasonable doubt, that
the petitioner is guilty of murder” and thus ineligible for relief
under section 1170.95. (§ 1170.95, subd. (d)(3).) As amended by
Senate Bill No. 775, subdivision (d)(3) of section 1170.95 now
clarifies that the superior court, sitting as finder of fact, “may
consider evidence previously admitted at any prior hearing or
trial that is admissible under current law, including witness
testimony, stipulated evidence, and matters judicially noticed.
The court may also consider the procedural history of the case
recited in any prior appellate opinion.” The Legislature also
amended section 1170.95 to specifically state: “A finding that
there is substantial evidence to support a conviction for murder,
attempted murder, or manslaughter is insufficient to prove,
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.” (§ 1170.95, subd. (d)(3); Legis. Counsel’s Dig., Sen.
Bill No. 775 (2021–2022 Reg. Sess.) [“This bill would specify that
a finding that there is substantial evidence to support a
conviction for murder, attempted murder, or manslaughter is
insufficient to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing”].)
On remand for an evidentiary hearing in accordance with
section 1170.95, subdivision (d)(3) as amended, the superior court
10
must make an independent finding on proof beyond a reasonable
doubt by the People that the petitioner is guilty of murder. “If
the prosecution fails to sustain its burden of proof, the prior
conviction, and any allegations and enhancements attached to
the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges.” (§ 1170.95, subd. (d)(3).)
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 superior
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.
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DISPOSITION
The order denying appellant’s Penal Code section 1170.95
petition is reversed. The matter is remanded to the superior
court for the issuance of an order to show cause and further
proceedings in accordance with Penal Code section 1170.95,
subdivision (d). At any evidentiary hearing pursuant to Penal
Code section 1170.95, subdivision (d)(3), the court, acting as an
independent fact finder, 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.
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