Opinion
B336102
10-01-2024
THE PEOPLE, Plaintiff and Respondent, v. HIEN AN DAO, Defendant and Appellant.
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. KA035193
THE COURT:Defendant and appellant Hien An Dao appeals from the trial court's denial of his petition for resentencing under Penal Code section 1172.6 (former § 1170.95).
All further statutory references are to the Penal Code unless otherwise indicated.
Effective June 30, 2022, former section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) For simplicity, we refer to the section by its new numbering.
Defendant's appointed counsel found no arguable issues and filed a brief under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Under the standard articulated in Delgadillo, we decline counsel's invitation to undertake an independent review of the record. Instead, we evaluate the arguments that defendant raises in his letter brief. (Delgadillo, supra, at pp. 231-232.) Finding none of his arguments meritorious, we affirm.
PROCEDURAL BACKGROUND
I. The Conviction and Sentence
In 1998, a jury convicted defendant of one count of first degree murder (§ 187) and found a firearm enhancement true (§ 12022.5, subd. (a)). He was sentenced to 30 years to life in state prison.
II. Petition for Resentencing
On January 7, 2022, defendant filed a petition for resentencing pursuant to former section 1170.95. The People opposed the petition on the grounds that defendant was the actual killer; however, because the jury instructions had not yet been obtained, the People conceded "the prima facie level only" and agreed to "proceed to the Order to Show Cause where [they would] prove beyond a reasonable doubt that [defendant was] the actual killer and . . . not entitled to resentencing relief." Following briefing, the trial court held an evidentiary hearing pursuant to section 1172.6, subdivision (d). Thereafter, it denied defendant's petition, finding that he was the actual killer of the single victim.
Defendant's timely appeal ensued.
DISCUSSION
In his supplemental brief, defendant sets forth two principal arguments. First, he contends that the trial court's order is not supported by substantial evidence. (People v. Arnold (2023) 93 Cal.App.5th 376, 383 [in determining whether a trial court correctly denied a section 1172.6 petition for resentencing after an evidentiary hearing, we review the court's factual findings for substantial evidence].) We disagree; the appellate record establishes that defendant was the actual killer. As the trial court noted, there was evidence that the murder weapon was a semiautomatic weapon, and witness testimony was consistent that defendant (as opposed to other persons present at the crime scene) was the one in possession of a semiautomatic pistol. There was also evidence that defendant was "in a position where he could have been the actual shooter." Finally, at least two witnesses identified defendant as the actual shooter. As the actual killer, defendant is ineligible for resentencing as a matter of law. (People v. Harden (2022) 81 Cal.App.5th 45, 59.)
Urging us to conclude otherwise, defendant directs us to contrary evidence. But it is well-settled that we do not redetermine the credibility of witnesses or reweigh the evidence. (People v. Sumahit (2005) 128 Cal.App.4th 347, 352; People v. Covarrubias (2016) 1 Cal.5th 838, 890.) And, we cannot, and will not, interpret the evidence differently to support defendant's narrative. (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1245 ["We do not review the evidence to see if there is substantial evidence to support the losing party's version of events, but only to see if substantial evidence exists to support the verdict in favor of the prevailing party"].)
Second, he argues that he did not receive effective assistance of counsel at the section 1172.6, subdivision (d), evidentiary hearing.
A claim that counsel's assistance was so defective as to require reversal as two components: First, defendant must show that counsel's performance was deficient. Second, defendant must show that the deficient performance was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687.) That said, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Id. at p. 697; see also In re Crew (2011) 52 Cal.4th 126, 150.)
Here, as set forth above, the evidence established that defendant was the actual killer, rendering him ineligible for resentencing as a matter of law. It follows that he did not suffer any prejudice as a result of his attorney's alleged ineffective representation.
DISPOSITION
The order is affirmed.
ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.