Filed 8/31/23 P. v. Huynh CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061668
v. (Super. Ct. No. 09CF1812)
TRI TRONG HUYNH, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Julian W. Bailey, Judge. Affirmed.
Eric S. Multhaup, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and James H.
Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
Tri Trong Huynh appeals from the trial court’s postjudgment order denying
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his Penal Code section 1172.6 petition. Huynh argues the court erred by admitting
evidence, he received ineffective assistance of counsel, insufficient evidence supports the
court’s finding, the court’s finding was legally incorrect, and his conviction must be
reduced to second degree murder.
As we explain below, Huynh forfeited appellate review of his evidentiary
argument because counsel failed to object. On this record, he cannot establish he was
prejudiced by any deficient performance. Because sufficient evidence supports the trial
court’s conclusion, we need not reach his claim the court’s ruling was legally incorrect.
Finally, section 1172.6 does not include a mechanism to reduce his conviction. We
affirm the postjudgment order.
FACTS
I. 2010 Trial Facts
We provide the facts from our prior nonpublished opinion, People v. Huynh
(May 31, 2012, G044790) (Huynh).
“[A] group of relatives were at the Asian Garden Mall in Westminster. The
group included brothers Kevin Eng, Kerry Te, Chamrotna Eng, and cousins Sam Por,
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Steven Por, and Heng Por, Heng’s wife, Cam Por, and Cam’s brother. When Kevin,
Sam, and Steven went outside to smoke, four Vietnamese/Asian men walked towards
1
Effective June 30, 2022, the Legislature renumbered Penal Code section
1170.95 to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) For
purposes of clarity, we refer to the statute as section 1172.6 throughout the opinion. All
further statutory references are to the Penal Code, unless otherwise indicated.
2
“We will refer to the parties by their first names for clarity, and not out of
disrespect.”
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them. One of the men asked, ‘“What are you looking at?”’ Kevin, Sam, and Steven did
not respond. As the men walked away, they said, ‘“Asian Crip.”’
“A little later, as the Eng group walked to their cars, the four men followed
them. One of the men asked where the Eng group was from, and Cam answered, ‘“We’re
just here shopping. We’re not from nowhere.”’ One of the men ran and kicked Sam and
a whistle sounded. A large group of men appeared from the shadows and attacked the
Eng group, who were all unarmed. Some of the attackers were armed; one of the
attackers had a mop handle and one had a bat. As the attackers fled, Heng heard
someone say, ‘A.C.’ or ‘A.B.’
“Kerry told Kevin someone hit him on the head and he felt tired. He laid
down and appeared to fall asleep. . . . Kerry died.” (Huynh, supra, G044790.)
Sergeant Brian Carpenter responded to the incident and interviewed Heng.
Heng told Carpenter that someone hit him with a bat. He explained that Kerry was on the
ground and someone hit him very hard on the head with a bat. He said another man was
punching Kerry. The crimes went unsolved. (Huynh, supra, G044790.)
Eight years later, Detective Tim Walker was investigating an unrelated case
when he learned of this case and Huynh. Walker interviewed Huynh five times over the
course of several months about the fight. During each interview, Huynh admitted he was
at the fight. During the last interview, Huynh admitted he associated with Asian Crips
gang members and admitted he kicked someone during the fight. (Huynh, supra,
G044790.)
At trial, “Kevin testified that weeks after the incident he identified Huynh
from a photographic lineup as the person who was hitting people with a mop stick.” But
on cross-examination, Kevin stated he was not sure the person he previously identified
was the person hitting people with the mop stick. (Huynh, supra, G044790.)
“Chamrotna testified that weeks after the incident he identified Huynh from
a photographic lineup as the person armed with a stick and hitting people. He explained
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Huynh was standing on a car with a stick near where Kerry was being beaten.” But on
cross-examination, “Chamrotna stated he was unsure whether Huynh was standing on top
of the car with a stick.” (Huynh, supra, G044790.)
Finally, Walker testified as the prosecutor’s gang expert. Based on a
plethora of evidence, Walker opined Huynh was an active participant in the Asian Crips
criminal street gang at the time of the murder. He explained the offenses were done to
promote the criminal street gang because there was a gang hit up, the gang committed
violent acts, and the attackers claimed gang membership. (Huynh, supra, G044790.)
The jury convicted Huynh of murder committed for a criminal street gang
purpose (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(22)), and street terrorism
(§ 186.22, subd. (a)). The jury found true he committed murder for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)), and personally used a deadly weapon
(§ 12022, subd. (b)(1)). After the trial court denied Huynh’s new trial motion, it
sentenced him to life in prison without the possibility of parole for the murder plus a
consecutive term of one year for personally using a deadly weapon. We affirmed.
(Huynh, supra, G044790.)
II. Postjudgment Facts
In January 2019, Huynh petitioned for resentencing pursuant to section
1172.6. The trial court summarily denied the petition. We reversed and remanded the
matter for the court to issue an order to show cause and conduct an evidentiary hearing.
(People v. Huynh (May 4, 2021, G058444) [nonpub. opn.].) We explained the gang
special circumstance did not establish as a matter of law that the jury convicted Huynh of
murder as an aider and abettor. (Ibid.)
On remand, the parties filed briefs. At the August 2022 evidentiary
hearing, the prosecutor moved to admit the reporter’s and clerk’s transcripts (trial
transcripts) from Huynh’s 2010 trial. Huynh’s counsel did not object, except to five
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categories of evidence detailed in his brief, including Walker’s expert opinion. The
prosecution rested.
Huynh offered the testimony of four members of the Eng group, including
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Chamrotna. Chamrotna testified that shortly after the incident, he viewed a
photographic lineup and identified the man with the bat and the man who swung at him.
Neither person was Huynh. On cross-examination, the prosecutor did not question
Chamrotna about his trial testimony, i.e., his identification of Huynh standing on the car
swinging a stick.
After counsel argued, the trial court denied Huynh’s petition. The court
explained that based on all the evidence presented at trial, Huynh was an active
participant in the crime. The court stated, “[H]e was at least standing on top of a car
where a beating was being administered, waving a stick in the air, which can only be, in
[the court’s] mind, an act of encouragement.” Acknowledging the issue was pending
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before our Supreme Court, the court added the jury’s finding on the gang special
circumstance established it concluded he had an intent to kill. Huynh appealed.
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437) amended sections
188 and 189 and added section 1172.6, significantly modifying the law relating to
accomplice liability for murder. (People v. Vargas (2022) 84 Cal.App.5th 943, 950
(Vargas).) Former section 1172.6, subdivision (a), provided, in relevant part, “A person
convicted of felony murder or murder under a natural and probable consequences theory
3
In the brief, Huynh’s counsel stated that section 1172.6, “sub[division]
(d)(3) makes clear testimony from petitioner’s prior trial is admissible in general.”
4
Kevin, the other person who identified Huynh as the person hitting people
with a mop stick at the original trial, died months before the evidentiary hearing.
5
People v. Curiel (Nov. 4, 2021, G058604) (nonpub. opn.), review granted
Jan. 26, 2022, S272238.
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may file a petition with the court that sentenced the petitioner to have the petitioner’s
murder conviction vacated and to be resentenced on any remaining counts . . . .” (Stats.
2018, ch. 1015, § 4.)
The Legislature enacted SB 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).) Under section 1172.6,
if the petitioner makes a prima facie showing, the court must issue an order to show cause
and, absent a waiver and stipulation by the parties, hold a hearing to determine whether to
vacate the murder conviction, recall the sentence, and resentence the petitioner.
(§ 1172.6, subds. (c), (d)(1).)
At the time Huynh filed his petition, former section 1172.6, subdivision
(d)(3), provided that at the evidentiary hearing, “The prosecutor and the petitioner may
rely on the record of conviction or offer new or additional evidence to meet their
respective burdens.” However, the Legislature amended section 1172.6, subdivision
(d)(3).
Senate Bill No. 775 (2021-2022 Reg. Sess.), which took effect on January
1, 2022, before the evidentiary hearing, amended section 1172.6 to address the scope of
admissible evidence at the evidentiary hearing.
As amended, section 1172.6, subdivision (d)(3), provides, in relevant part:
“The admission of evidence in the hearing shall be governed by the Evidence Code,
except that the court 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.” (Italics added.)
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I. Admission of Trial Transcripts
Huynh argues the trial court erred by admitting the trial transcripts in their
entirety pursuant to the then recently amended section 1172.6, subdivision (d)(3).
Conceding his counsel did not object to admission of the transcripts, he contends his
counsel was ineffective. We disagree.
Witkin states the general rule: “Where inadmissible evidence is offered,
the party who desires to raise the point of erroneous admission on appeal must object at
the trial, specifically stating the grounds of the objection, and directing the objection to
the particular evidence that the party seeks to exclude. Obviously, failure to object at all
waives the defect.” (3 Witkin, Cal. Evidence (6th ed. 2023) Presentation at Trial, § 395;
Evid. Code, § 353; People v. Perez (2020) 9 Cal.5th 1, 7 (Perez) [failure to object to
admission of hearsay at trial forfeits appellate claim evidence was improperly admitted].)
“‘“The reason for the [objection] requirement is manifest: a specifically grounded
objection to a defined body of evidence serves to prevent error. It allows the trial judge
to consider excluding the evidence or limiting its admission to avoid possible prejudice.
It also allows the proponent of the evidence to lay additional foundation, modify the offer
of proof, or take other steps designed to minimize the prospect of reversal.”’ [Citation.]”
(Perez, supra, 9 Cal.5th at p. 7.)
As Huynh acknowledges, at the evidentiary hearing, his counsel did not
object to admission of the trial transcripts in their entirety. The trial court’s duty to
ensure proceedings are conducted in accordance with the Evidence Code does not
absolve counsel of the duty to object to admission of evidence counsel believes
inadmissible. He did object to five categories of evidence. Huynh’s claim the court erred
by admitting the trial transcripts in their entirety is forfeited because counsel’s objections
were limited to the five categories of evidence. Thus, we must determine whether Huynh
received ineffective assistance of counsel.
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To prevail on a claim of ineffective assistance of counsel, a defendant must
establish two criteria: (1) counsel’s performance fell below an objective standard of
reasonable competence and (2) defendant was prejudiced, i.e., it is reasonably probable
there would have been a different result absent the alleged error. (Strickland v.
Washington (1984) 466 U.S. 668, 687, 694.) “If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should
be followed.” (Id. at p. 697.)
After providing a lengthy discussion of section 1172.6, subdivision (d)(3)’s
plain language, legislative history, purpose, and commentary, Huynh asserts his counsel
was ineffective for failing to object to admission of the trial transcripts in their entirety.
His argument is essentially that the amendment limits the admissibility of prior witness
testimony subject to current law, i.e., the Evidence Code. He adds, “The Legislature
could not have meant to create an exception so broad that all prior testimony from the
original trial would be admissible for its truth without regard to the Evidence Code,
because that would negate the primary thrust of the amendment.” (Underscoring
omitted.)
First, section 1172.6, subdivision (d)(3), states, “the court may consider
evidence previously admitted at any prior hearing or trial that is admissible under current
law, including witness testimony.” (Italics added.) The plain language establishes a
reporter’s transcript of witness testimony at trial is admissible at a section 1172.6
evidentiary hearing. At the time of the hearing, there was authority that stood for the
proposition that in a section 1172.6 proceeding, the trial court may consider the record of
conviction. People v. Lewis (2021) 11 Cal.5th 952, 971, stood for the proposition that at
the prima facie stage, the trial court may consider the record of conviction. People v.
Clements (2022) 75 Cal.App.5th 276, 297-298 (Clements), stood for the proposition
section 1172.6, subdivision (d)(3), does not contemplate a whole new trial on all the
elements of murder. Based on this authority, we cannot conclude counsel was ineffective
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for failing to object to admission of the trial transcripts in their entirety. He objected to
those portions where a legal basis existed.
Second, even assuming counsel was ineffective, Huynh cannot establish he
was prejudiced. It is not reasonably probable that had counsel objected there would have
been a different result. Importantly, Huynh does not assert any specific evidence was
inadmissible pursuant to the Evidence Code. The weight of authority at the time of the
evidentiary hearing stood for the proposition that transcripts of witness trial testimony
were admissible at a section 1172.6 evidentiary hearing. Had counsel objected to
admission of the trial transcripts in their entirety, the trial court would have overruled that
objection. How else would a trial court determine whether a petitioner is entitled to
relief? Again, section 1172.6, subdivision (d)(3), does not contemplate a whole new trial.
(Clements, supra, 75 Cal.App.5th at p. 298.)
Huynh asserts generally that Evidence Code sections 240 [witness
unavailable] and 1291 [former testimony hearsay exception] authorize admission of trial
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testimony only when the witness was determined to be unavailable. Again, however,
section 1172.6, subdivision (d)(3), authorizes the admission of a reporter’s transcript of
witness testimony at trial, which is what happened here. As we explain below, sufficient
evidence supports the trial court’s conclusion Huynh aided and abetted murder. Huynh
has not established it was reasonably probable he would have received a better result had
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counsel objected to admission of the trial transcripts.
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The implication is that because Chamrotna testified, his prior testimony
would be inadmissible. Chamrotna was one of two people who identified Huynh as the
person hitting people with a stick and the one person who testified he was standing on a
car. The other person who identified Huynh died months before the hearing.
Presumably, his prior testimony would be admissible.
7
We note appellate counsel indicated he is preparing a petition for writ of
habeas corpus to raise the claim Huynh’s counsel was ineffective. To date, we have not
received that petition.
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II. Sufficiency of the Evidence
Huynh contends insufficient evidence supports the trial court’s conclusion
he aided and abetted murder. We disagree.
“At an evidentiary hearing under section 1172.6, subdivision (d)(3), the
trial judge is charged with determining, beyond a reasonable doubt, if the petitioner is
guilty of murder under a theory that remains valid after the amendments to the
substantive definition of murder. [Citations.]” (Vargas, supra, 84 Cal.App.5th at p. 952
[section 1172.6, subdivision (d)(3), does not contemplate whole new trial].) “Its factual
finding . . . is reviewed for substantial evidence. [Citation.] Accordingly, ‘we review the
evidence in the light most favorable to the prosecution and presume in support of the
judgment the existence of every fact the [trier of fact] could reasonably have deduced
from the evidence.’ [Citations.] In conducting this review, ‘“‘[w]e resolve neither
credibility issues nor evidentiary conflicts . . . .’ [Citation.]” [Citation.]’ [Citation.]”
(People v. Schell (2022) 84 Cal.App.5th 437, 442 (Schell).)
Here, sufficient evidence supports the trial court’s conclusion Huynh aided
and abetted murder. At trial, Chamrotna testified that weeks after the incident, he
identified Huynh as the person standing on top of a car swinging a stick at people. Kevin
also testified that weeks after the incident, he identified Huynh as the person swinging a
stick at people. Although on cross-examination, both backtracked, it was for the jury to
make that credibility determination. And at the section 1172.6 hearing, it was for the trial
court to determine whether the prosecution proved beyond a reasonable doubt whether
the petitioner is still guilty of murder under a viable theory. The court reviewed the
record and determined Huynh was liable of murder under a viable theory because he
encouraged, i.e., aided and abetted, murder. The record includes evidence to support the
court’s conclusion.
Huynh notes that at the section 1172.6 evidentiary hearing, the prosecutor
did not examine Chamrotna about his trial testimony regarding his identification. He
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asks this court to draw an evidentiary inference in his favor because of the prosecutor’s
failure. (See Evid. Code, § 412.) That is not our role on appeal. (Schell, supra,
84 Cal.App.5th at p. 442.)
Huynh cites to Clements, supra, 75 Cal.App.5th at page 297, for the
proposition, “It’s true that it’s unusual to ask the trial judge to sit as the fact finder and (in
some cases) make factual determinations on a cold record, as the judge did in this case.”
But as Huynh recognizes, the Clements court concluded that although it was not an “ideal
position for a fact finder, it is possible to review a trial transcript and reach an opinion
about what actually happened.” (Ibid.)
In this setting, the trial court was the fact finder. Huynh understandably is
displeased with the result. We cannot substitute our judgment for the trial court’s where
there was sufficient evidence supporting the court’s conclusion Huynh aided and abetted
the murder. Because we conclude sufficient evidence supported the trial court’s
conclusion, we need not address his claim the court erred by concluding the gang special
circumstance made him ineligible for relief.
III. Reduction from First to Second Degree Murder
Huynh states that at trial, the court did not instruct the jury on the necessary
mens rea for first degree murder as to him. He asserts that at the section 1172.6 hearing,
the trial court erroneously failed to make a finding as to the degree of murder and that we
must either reduce his conviction or reverse and remand for the court to make the finding.
We cannot do that.
In People v. Gonzalez (2023) 87 Cal.App.5th 869, 880, the court opined,
“Section 1172.6’s plain language does not contain a mechanism for a trial court to reduce
a first degree murder conviction to second degree murder.” The court explained the
following: “[U]nder section 1172.6, a trial court has two options in adjudicating a
resentencing petition: Deny the petition and leave in place the murder conviction or grant
the petition and vacate the murder conviction and resentence the defendant on the
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remaining charges or target offense or underlying felony. Reducing a first degree murder
conviction to second degree murder is not an option under section 1172.6.” (Id. at
p. 881.) Gonzalez is persuasive.
Section 1172.6’s plain language does not authorize the trial court to reduce
a murder conviction. Thus, here, the trial court was not required to make a finding as to
the degree of murder because it had only two options—deny the petition or grant the
petition vacating the murder conviction and resentence the defendant on the remaining
charges. There is no third door, Monty.
DISPOSITION
The postjudgment order is affirmed.
O’LEARY, P. J.
WE CONCUR:
BEDSWORTH, J.
MOORE, J.
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