Opinion
G057524
09-27-2019
THE PEOPLE, Plaintiff and Respondent, v. HUNG LINH HOANG, Defendant and Appellant.
Hung Linh Hoang, in pro. per.; and James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 03WF1095) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Hung Linh Hoang, in pro. per.; and James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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INTRODUCTION
We appointed counsel to represent defendant Hung Linh Hoang on appeal. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), setting forth the facts of the case, raising no issues, and requesting that we independently review the entire record. We provided defendant 30 days to file written argument on his own behalf; he did so.
We have examined the entire record, appointed appellate counsel's Wende/Anders brief, and defendant's supplemental brief; we find no reasonably arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore affirm.
BACKGROUND
Defendant was convicted of attempted murder and active participation in a criminal street gang (street terrorism). Sentencing enhancement allegations for personal use of a firearm and for committing the offenses for the benefit of, at the direction of, or in association with a criminal street gang were found true. In an unpublished opinion, this court affirmed the judgment of conviction. (People v. Hoang (Apr. 28, 2006, G034779).)
Defendant filed a petition pursuant to Penal Code section 1170.18, requesting redesignation of his conviction as a misdemeanor. The trial court denied the petition, and that order was affirmed on appeal. (People v. Hoang (Feb. 17, 2016, G051861) [nonpub. opn.].)
Defendant then filed a petition for a writ of habeas corpus in this court to overturn his conviction for street terrorism, based on People v. Rodriguez (2012) 55 Cal.4th 1125. This court granted the petition, vacated the conviction for street terrorism, and directed the trial court to amend the abstract of judgment. (In re Hung Linh Hoang (Dec. 29, 2016, G052501) [nonpub. opn.].)
The present appeal arises from a petition for resentencing under Penal Code section 1170.95 (section 1170.95). The trial court denied the petition: "The petition does not set forth a prima facie case for relief under the statute. A review of court records indicates defendant is not eligible for relief under the statute because the defendant does not stand convicted of murder or defendant's murder conviction(s) is not based on felony-murder or on a natural and probable consequences theory of vicarious liability for aiders and abettors." Defendant timely filed a notice of appeal.
ANALYSIS OF POTENTIAL ISSUES
"Senate Bill 1437 was enacted 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).) Substantively, Senate Bill 1437 accomplishes this by amending [Penal Code] section 188, which defines malice, and [Penal Code] section 189, which defines the degrees of murder, and as now amended, addresses felony murder liability. Senate Bill 1437 also adds the aforementioned section 1170.95, which allows those 'convicted of felony murder or murder under a natural and probable consequences theory . . . [to] 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.'" (People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
The trial court properly denied defendant's section 1170.95 petition for two reasons. First, Senate Bill No. 1437 does not apply to a conviction of attempted murder. By its plain terms, it applies only to felony murder or murder under a natural and probably consequences theory. None of the sections added or amended by Senate Bill No. 1437 makes any reference to attempted murder. (Pen. Code, §§ 188, 189, 1170.95.) "If the plain language of the statute is clear and unambiguous, [the courts'] inquiry ends, and [one] need not embark on judicial construction." (People v. Johnson (2002) 28 Cal.4th 240, 244.)
As our colleagues in the Second Appellate District, Division Seven recently explained: "Here, there is nothing ambiguous in the language of Senate Bill 1437, which, in addition to the omission of any reference to attempted murder, expressly identifies its purpose as the need '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.' [Citation.] Had the Legislature meant to bar convictions for attempted murder under the natural and probable consequences doctrine, it could easily have done so. [Citations.] [¶] The Legislature's obvious intent to exclude attempted murder from the ambit of the Senate Bill 1437 reform is underscored by the language of new section 1170.95, the provision it added to the Penal Code to permit individuals convicted before Senate Bill 1437's effective date to seek the benefits of the new law from the sentencing court. Section 1170.95, subdivision (a), authorizes only those individuals 'convicted of felony murder or murder under a natural and probable consequences theory' to petition for relief; and the petition must be directed to 'the petitioner's murder conviction.' Similarly, section 1170.95, subdivision (d)(1), authorizes the court to hold a hearing to determine whether to vacate 'the murder conviction.' [¶] The plain language meaning of Senate Bill 1437 as excluding any relief for individuals convicted of attempted murder is fully supported by its legislative history. [Citations.] When describing the proposed petition process, the Legislature consistently referred to relief being available to individuals charged in a complaint, information or indictment 'that allowed the prosecution to proceed under a theory of first degree felony murder, second degree felony murder, or murder under the natural and probable consequences doctrine' and who were 'sentenced to first degree or second degree murder.' [Citation.] In addition, when discussing the fiscal impact and assessing the likely number of inmates who may petition for relief, the Senate Committee on Appropriations considered the prison population serving a sentence for first and second degree murder and calculated costs based on that number. [Citation.] The analysis of potential costs did not include inmates convicted of attempted murder." (People v. Lopez (Aug. 21, 2019) 38 Cal.App.5th 1087, 1104-1105; see People v. Munoz (Sep. 6, 2019, B283921) ___ Cal.App.5th ___ [2019 Cal.App. Lexis 843, *34-35] ["The remedy for any potentially inequitable operation of section 1170.95 lies with the Legislature. If the Legislature concludes it is unwise or inequitable to exclude attempted murderers from Senate Bill 1437's reach, it has only to amend the law"].)
Second, defendant's conviction for attempted murder was not based on the felony murder rule or the doctrine of natural and probable consequences. The statement of facts in this court's opinion affirming defendant's convictions reads in relevant part as follows: "Defendant and the victim faced each other about eight feet apart when defendant pointed the gun at the victim. The victim 'put his hands up to kind of like defend—not defend himself, but to shield him, shield his face, sort of.' Defendant pulled the trigger and S. 'heard the hammer click.' The gun did not fire. The victim jumped and looked shocked; defendant appeared to be angry." (People v. Hoang, supra, G034779.)
Defendant filed a supplemental brief with attachments, totaling 189 pages. Defendant's supplemental brief does not address any issues arising from the denial of his section 1170.95 petition, which is the only issue properly before us in this appeal.
The cover of defendant's supplemental brief reads, in part: "Defendant . . . requests for relief in the manner of a new trial, vacatur of convicted charges, a new habeas corpus petition writ case no. and appointed attorney in pursuit of actual innocence jury instruction error and new evidence; and/or equitable tolling for a new direct appeal to state a new set of facts based on the exhibits included herein, not included, partially include, and an evidentiary hearing/oral argument requested." The supplemental brief further indicates that defendant will move the trial court for a new trial pursuant to Penal Code section 1181. Defendant requests the following in a "Prayer for Relief included in his supplemental brief:
"Petitioner hereby requests the arresting agency and district attorney for a determination of factual innocence.
"Pursuant to P[enal] C[ode] 851.8; People v. Adair (2003) Petition[er] requests for any records of all arrests and charges that did not result in conviction sealed by obtaining a declaration of factual innocence.
"Petitioner believes he has been charged of allegations not permitted to convict the defendant because of factual determinations not investigated during pre-trial stages . . . .
"Pursuant to People v. Ault (2004) 33 Cal.4th 1250, 1262, both an error occurred and the error(s) (occurred) [']prevented the complaining party from receiving a fair trial.'
"Pursuant to California Constitution, Article VI, § 10 and [P]enal [C]ode § 1508 set forth the powers of California state courts to issue writs of habeas corpus.
"Pursuant to all Exhibits and Evidence, a new trial is demanded."
With regard to the exhibits attached to the supplemental brief, the only exhibit related to the section 1170.95 petition is the trial court's minute order denying that petition.
Defendant's supplemental brief does not address the propriety of the trial court's denial of the section 1170.95 petition. We express no opinion as to the timeliness or the likelihood of success of a new trial motion, a new direct appeal, or a new petition for a writ of habeas corpus. None of those issues is before us on appeal.
Our review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the possible issues suggested by defendant, has disclosed no reasonably arguable appellate issue. Competent counsel has represented defendant in this appeal.
DISPOSITION
The postjudgment order is affirmed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.