Opinion
G058444
05-04-2021
THE PEOPLE, Plaintiff and Respondent, v. TRI TRONG HUYNH, Defendant and Appellant.
Eric S. Multhaup, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Charles C. Ragland, and James H. Flaherty III, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 09CF1812) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Julian W. Bailey, Judge. Reversed and remanded. Eric S. Multhaup, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Charles C. Ragland, and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Tri Trong Huynh of first degree murder and found true a criminal street gang special circumstance, a criminal street gang enhancement, and a personal use of a deadly weapon enhancement. Huynh sought resentencing pursuant to Senate Bill No. 1437 (S.B. 1437). The trial court denied his petition for resentencing in light of the jury's true findings. It determined Huynh was ineligible for resentencing under S.B. 1437 as a matter of law because the true findings required the jury to conclude, "it was he who struck the mortal blows." Huynh asserts this was done in error, and we agree. The jury's findings did not establish he was ineligible for resentencing as a matter of law. We therefore reverse the trial court's postjudgment order and remand the matter for further proceedings consistent with this opinion.
FACTS
A detailed recitation of the facts is set forth in the prior opinion in this case. (People v. Huynh (May 31, 2012, G044790) [nonpub. opn.] (Huynh I).) In sum, in 2001 four men approached a group of relatives at a mall. (Ibid.) As the group of relatives left the mall, the men followed them. (Ibid.) As the men began to attack the group of relatives, another larger group of men appeared and joined in the fight. "Some of the attackers were armed; one of the attackers had a mop handle and one had a bat." (Ibid.) The victim, Kerry Te, from the group of relatives, said someone hit him on the head and he felt tired. (Ibid.) He later died. (Ibid.) One witness told police, Te "was on the ground and someone hit him very hard on the head with a bat." (Ibid.) Weeks later, Te's brother identified Huynh as "the person who was hitting people with a mop stick," and another witness identified Huynh as a person "standing on a car with a stick near where [Te] was being beaten." (Ibid.)
At trial, the court instructed the jury on murder under both aiding and abetting and natural and probable consequences theories. With respect to the special circumstance allegation, the trial court instructed the jury with CALCRIM No. 702. That instruction informed the jury, "for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor, the People must prove that the defendant acted with the intent to kill."
The jury convicted Huynh of first degree murder (Pen. Code § 187, subd. (a)), and street terrorism (§ 186.22, subd. (a)). It also found true the allegation the murder was committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)), and that to commit the murder, Huynh personally used a deadly and dangerous weapon—a stick (§ 12022, subd. (b)(1)). The gang special circumstance verdict read as follows: "We the Jury in the above-entitled action do find it to be true that [Huynh] intentionally murdered . . . Te while [Huynh] was an active participant in the Asian Crips criminal street gang and the murder was carried out to further the activities of that gang, as alleged in the [s]pecial [c]ircumstance allegation pursuant to . . . section 190.2[, subdivision] (a)(22)." (Capitalization omitted.) The finding on the personal use of a deadly weapon stated: "Huynh, personally used a dangerous or deadly weapon, to wit: a stick, during the commission of the crime of murder, as alleged pursuant to . . . section 12022[, subdivision] (b)(1)." The trial court sentenced Huynh to life in prison without the possibility of parole, plus one year.
All further statutory references are to the Penal Code.
Huynh appealed. In 2012, this court affirmed the conviction and true findings in an unpublished opinion. (Huynh I, supra, G044790.)
In 2019, Huynh filed a petition for resentencing and the trial court appointed counsel to represent him. Thereafter, the court denied Huynh's petition. It determined the record demonstrated as a matter of law the jury's verdict was not premised on a natural and probable consequence theory. Specifically, it reasoned as follows: "[I]t is apparent that [Huynh's] conviction rests upon a jury's finding that it was he who struck the mortal blows, not that he was vicariously liable for the killing based upon a theory of accomplice liability or the 'natural and probable consequences' theory"; and that "[t]he jury found beyond a reasonable doubt that he had personally used a dangerous or deadly weapon in the commission of the first degree murder, thus this case does not fall within the provisions of S.B. 1437 and . . . [section] 1170.95."
DISCUSSION
I. S.B. 1437 and Section 1170 .95
S.B. 1437, "amended sections 188 and 189 and added section 1170.95 to the Penal Code, significantly modifying the law relating to accomplice liability for murder." (People v. Lopez (2019) 38 Cal.App.5th 1087, 1098-1099, rev. granted Nov. 13, 2019, S258175 (Lopez); Cal. Rules of Court, rule 8.1115(e)(1) [while review pending may rely on for persuasive value].) Section 1170.95, subdivision (a), provides, in relevant part, "A person convicted of felony murder or murder under a natural and probable consequences theory 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
The Legislature enacted S.B. 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." (§§ 188, 189, as amended by Stats. 2018, ch. 1015, § 1, subd. (f).)
Under section 1170.95, 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. (§ 1170.95, subds. (c), (d)(1).) A prima facie showing under section 1170.95 requires the following: (1) an accusatory pleading was filed against the petitioner allowing the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine; (2) he or she was convicted of first or second degree murder following a trial, or accepted a plea offer to first or second degree murder in lieu of trial, at which he or she could have been so convicted; and (3) that he or she could not be convicted of murder due to the amendments to sections 188 and 189. (§ 1170.95, subd. (a)(1)-(3).) II. Analysis
Huynh argues the trial court improperly denied his petition after he made a prima facie showing under section 1170.95. We agree.
Huynh alleged in his petition, and our record reflects, one of the theories the prosecution relied on to convict him of first degree murder was the natural and probable consequences theory. Notwithstanding this showing by Huynh, however, the trial court determined him to be ineligible based upon the jury's true findings. The Attorney General argues the special circumstance finding established Huynh acted with intent to kill. To convict a defendant for first degree murder under the theory of direct aiding and abetting, however, the prosecution must prove more than just murderous intent. In addition to proving the defendant harbored the intent to kill, the prosecution must also show the defendant's words or conduct did in fact encourage or assist the perpetrator's commission of the murder. (People v. Campbell (1994) 25 Cal.App.4th 402, 411.)
The trial court determined the true finding on the personal use of a deadly weapon enhancement precluded resentencing. The Attorney General does not refute Huynh's argument on this point, likely because of case law to the contrary. (People v. Offley (2020) 48 Cal.App.5th 588, 597 ["an enhancement under section 12022.53, subdivision (d) does not establish as a matter of law that a defendant acted with malice aforethought. It is therefore insufficient on its own to justify denying a defendant's petition under section 1170.95 at the first stage of review"].) --------
Here, the jury's true finding on the special circumstance allegation did not prove this vital additional requirement. It merely satisfied the intent requirement for aiding and abetting a murder. Similarly, the jury's finding Huynh acted with premeditation, elevating the murder to first degree, was not determinative as to whether Huynh encouraged or assisted the perpetrator in carrying out the murder. Thus, the jury's findings did not prove, as a matter of law, Huynh was convicted under the theory of direct aiding and abetting. Because he could have been convicted under the natural and probable consequences theory, it was error for the trial court to deny his petition for resentencing at this preliminary stage.
Because Huynh made a prima facie showing under section 1170.95, the trial court should have issued an order to show cause. Absent a waiver and stipulation by the parties, it should have ordered a hearing to allow the prosecution to prove beyond a reasonable doubt that, notwithstanding its reliance on the now-defunct theory of natural and probable consequences, Huynh is ineligible for resentencing because he either directly aided and abetted Te's murder, or killed Te himself. (§ 1170.95, subds. (a)(3), (d)(3).) Absent such proof, the trial court must grant Huynh's petition and resentence him in accordance with section 1170.95.
DISPOSITION
The order denying Huynh's section 1170.95 petition is reversed, and the matter remanded with directions to issue an order to show cause and to proceed consistently with section 1170.95, subdivision (d).
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. MOORE, J.