Opinion
B300865
03-04-2020
THE PEOPLE, Plaintiff and Respondent, v. CHOEUN MEAN, Defendant and Appellant.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NA048273) APPEAL from an order of the Superior Court of Los Angeles County, James D. Otto, Judge. Affirmed. Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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Defendant Choeun Mean appeals from an order denying his motion for recall of sentence and resentencing pursuant to Penal Code section 1170.95, subdivision (a). We conclude that he is not entitled to be resentenced, and accordingly affirm.
BACKGROUND
Mean and two fellow gang members were involved in a car-to-car shooting. In 2003, a jury convicted them of one count of murder (Pen. Code, § 187), one count of attempted murder (§§ 187, 664), and one count of shooting at an occupied motor vehicle (§ 246). The jury found true the allegations that the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and in the commission of the crimes, a principal used a firearm for the benefit of a criminal street gang (§ 12022.53, subds. (b)-(e)). The jury also found true the special circumstance allegations that the murder was committed for the benefit of a criminal street gang (§ 190.2, subd. (a)(22)) and by discharging a firearm from a motor vehicle (id., subd. (a)(21)). The trial court found true the prior conviction (§ 667, subds. (a), (b)-(i)) and prior prison term (§ 667.5, subd. (b)) allegations. It sentenced Mean to life without the possibility of parole plus two consecutive terms of 25 years to life. We affirmed the judgment of conviction on appeal. (People v. Mean et al. (Nov. 1, 2004, B166841 & B172007) [nonpub. opn.] .)
All further statutory references are to the Penal Code.
In 2019, section 1170.95 was added to the Penal Code. (Stats. 2018, ch. 1015, § 4.) It provides: "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 when all of the following conditions apply:
"(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine.
"(2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder.
"(3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1170.95, subd. (a).)
On January 9, 2019, Mean submitted a petition under section 1170.95, seeking recall of his sentence for murder and resentencing. On January 16, the trial court ordered the People to respond to the petition.
The petition for resentencing was stamped filed in the superior court on March 16, 2019.
The People filed their opposition on March 7. They argued that the record of conviction showed the jury was not instructed on the felony murder rule or the natural and probable consequences doctrine, so section 1170.95 by its terms did not apply.
On March 21, 2019, the trial court summarily denied Mean's petition. It found that Mean "was convicted of aiding and abetting first degree murder with the specific intent to commit willful[,] premeditated and deliberate murder. [Mean] was not convicted under the felony-murder rule nor under the natural and probable consequences doctrine because the jury was not instructed on either theory."
The trial court also denied the petition on the ground section 1170.95 violated the California Constitution. We need not address this independent basis for denying the petition. --------
DISCUSSION
We appointed counsel to represent Mean on this appeal. After review of the record, Mean's counsel filed an opening brief requesting that this court independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. On December 4, 2019, we sent a letter to Mean, advising him that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. We received no response.
We have examined the entire record. We are satisfied that no arguable legal issues exist and that Mean's counsel has fully complied with her responsibilities. By virtue of counsel's compliance with the Wende procedure and our review of the record, we are satisfied that Mean received adequate and effective appellate review of the order entered against him in this case. (People v. Wende, supra, 25 Cal.3d at p. 441; accord, People v. Kelly (2006) 40 Cal.4th 106, 109-110.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED
JOHNSON, J. We concur:
ROTHSCHILD, P. J.
BENDIX, J.