Filed 2/7/23 P. v. Ketsouvannasane CA4/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE,
Plaintiff and Respondent, E076512
v. (Super.Ct.No. CR57988)
KHAMCHAN BRET OPINION
KETSOUVANNASANE,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland and Charles C. Ragland, Senior Assistant Attorneys General,
and Eric A. Swenson, Jennifer B. Truong, and Marvin E. Mizell, Deputy Attorneys
General, for Plaintiff and Respondent.
1
In 1995, petitioner Khamchan Bret Ketsouvannasane was convicted of (among
other things) first degree murder, with a robbery-murder special circumstance. In 2019,
he filed a petition for resentencing under Penal Code section 1172.6.1 The trial court
denied the petition; it ruled that the robbery-murder special circumstance finding
conclusively established that he was not eligible for relief.
Petitioner contends that this was error. Under People v. Strong (2022) 13 Cal.5th
698 (Strong) — decided while this appeal was pending — he is correct.
I
DISCUSSION
Under section 1172.6, the trial court must vacate a first degree murder conviction
that was based on a felony-murder theory, unless the petitioner either (1) was the actual
killer, (2) had the intent to kill and aided and abetted the commission of first-degree
murder, or (3) was a major participant in the underlying felony and acted with reckless
indifference to human life.2 (§ 1172.6, subd. (d)(3), incorporating § 189, subd. (e).)
1 All further statutory citations are to the Penal Code.
The petition was actually filed under former section 1170.95. (Enacted by Stats.
2018, ch. 1015, § 4, amended by Stats. 2021, ch. 551, § 2.) While this appeal was
pending, former section 1170.95 was renumbered as section 1172.6, with no change in
text. (Stats. 2022, ch. 58, § 10.) We will use section 1172.6, somewhat
anachronistically, to refer to whichever one of the two statutes was in effect at the
relevant time.
2 Or — we note for completeness, although it is not relevant here — unless
the victim was a police officer killed in the course of his or her duties and the defendant
knew or should have known that. (§ 189, subd. (f).)
2
A felony-murder special circumstance, however, requires that the defendant either
(1) was the actual killer, (2) had the intent to kill and aided and abetted the commission of
first-degree murder, or (3) was a major participant in the underlying felony and acted
with reckless indifference to human life. (§ 190.2, subds. (a)(17), (b)-(d).)
Accordingly, when first confronted with the question, this court held that a true
finding on a felony-murder special circumstance conclusively established ineligibility for
relief under section 1172.6. (People v. Jones (2020) 270 Cal.Rptr.3d 362, review granted
Jan. 27, 2021, S265854, depublished and transferred with directions Sept. 28, 2022.)
While this appeal was pending, however, Strong held that People v. Banks (2015)
61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) “substantially
clarified” the requirements of a felony murder special-circumstance finding. (Strong,
supra, 13 Cal.5th at p. 706.) Therefore, a felony murder special-circumstance finding
made before Banks and Clark were decided does not conclusively establish ineligibility
for relief under section 1172.6. (Strong, supra, at pp. 710-720.)
The People concede that, in light of Strong, the trial court erred, and we must
reverse the order appealed from. We agree, and we will do so.
Petitioner also argues that we should direct the trial court to issue an order to show
cause. (See § 1172.6, subd. (c).) This, the People do not concede.
Because the trial court denied the petition based on the felony-murder special
circumstance, it has not yet ruled on whether the petition otherwise stated a prima facie
3
case. We decline to review a ruling it did not make. We leave the question of whether to
issue an order to show cause to be decided by the trial court in the first instance.
II
DISPOSITION
The order appealed from is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
CODRINGTON
J.
SLOUGH
J.
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