Opinion
C092950
10-19-2021
THE PEOPLE, Plaintiff and Respondent, v. LAMSON TRONG PHAM, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 02F11038)
KRAUSE, J.
While defendant Lamson Trong Pham was serving a life sentence for second degree murder, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) (Stats. 2018, ch. 1015, §§ 1-4), which amended the law governing murder liability under felony murder and natural and probable consequences theories and enacted a new procedure under Penal Code section 1170.95 for eligible defendants to petition for recall and resentencing.
Further undesignated statutory references are to the Penal Code.
Defendant appeals from the trial court's order denying his petition for resentencing under section 1170.95. His appointed counsel filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant filed a supplemental brief, arguing the instructions given to the jury on implied malice, which included natural consequences language, are no longer proper given Senate Bill 1437's amendments and that the court erred in summarily denying his petition. We disagree and affirm.
BACKGROUND
In 2003, defendant and two codefendants, Bruce Phan and Sutter Nguyen, were charged with the murder of Alan Khamphoumy (§ 187), with the personal use and discharge of a firearm causing great bodily injury or death (§ 12022.53, subds. (b)-(d)), and the attempted murder (§§ 664, 187) of T.T. and V.D., along with the same firearm allegations. (People v. Pham (Jan. 22, 2008, C049751, C049992) [nonpub. opn.] (Pham).) A jury found defendant guilty of second degree murder and two counts of attempted murder and found true as to each count that he personally used a firearm (§ 12022.53, subd. (b)), personally discharged a firearm (§ 12022.53, subd. (c)), and caused great bodily injury or death by using a firearm (§ 12022.53, subd. (d)). The facts underlying the crimes, according to our unpublished opinion affirming defendant's convictions, were as follows:
In October 2002, a Laotian family held a birthday party for a teenage girl at their Sacramento home. Some of the attendees, including one of the people who was shot, T.T., were involved in a Laotian street gang. Defendant and codefendant Phan, who were Vietnamese, attended the party. Although there was no evidence that Phan was a gang member, the evidence showed defendant did associate with a Vietnamese street gang, and codefendant Nguyen was a validated member of the same Vietnamese gang.
The two groups faced each other across the driveway at the residence, and the Vietnamese group asked where the Laotian group was from, which in gang parlance was indicative of a challenge to fight. After one of the Laotians responded with gang initials, the Vietnamese pulled out their guns and started shooting. T.T. was shot in the stomach, while V.D. was shot in the hip and leg, and Khamphoumy was shot and killed.
Defendant and Phan were stopped by police on the same street as the party when they tried to leave the scene in an SUV. Defendant had been shot, perhaps accidentally, by one of his companions. Two guns were found in their SUV, both of which were connected to casings found at the crime scene. Phan's fingerprints were on a gun which was matched to the bullet that killed Khamphoumy and gunshot residue was found on his palm. Some but not all partygoers identified defendant and Phan in police lineups. As part of the investigation, police sought Nguyen, but did not locate and arrest him until months later.
Defendant and Phan both testified at trial; they admitted they were at the party and had fired guns but claimed they did so in self-defense. Defendant denied involvement in the Vietnamese gang, but knew Nguyen had previously been a member of the gang. He carried a gun to the party to impress girls, and only fired after someone shot at him. Phan testified he was not a member of the Vietnamese gang, and said he also carried a gun to impress girls. He said he fired only in defense of defendant. While some witnesses placed Nguyen at the party, others testified they did not see him there.
The prosecution's theory of the case was that defendants were involved in a Vietnamese street gang and went looking for a confrontation with rival Laotian gang members and shot at unarmed people. Defendant and Phan claimed self-defense, and Nguyen's counsel argued there was no evidence Nguyen was even at the party that night or had anything to do with the crimes.
After the jury found defendant guilty on all counts and found the attached firearm enhancements true, the trial court sentenced defendant to an indeterminate term of 15
years to life with the possibility of parole for the murder, a determinate term of nine years four months for the attempted murders, plus consecutive terms of 25 years to life for each of the firearm enhancements. Defendant appealed his convictions, and we affirmed the judgment after modifying the firearm enhancement attached to count three to one-third the full term, or eight years four months to life.
In August 2019, defendant filed a petition for resentencing in propria persona under section 1170.95. Defendant's petition alleged that a complaint, information, or indictment was filed against him that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine; that at trial he was "convicted of second-degree following a trial in which [he] could be convicted for second-degree"; that he could not now be convicted of second degree murder because of changes made to section 188 and section 189, effective January 1, 2019.
Defendant's petition also requested that during resentencing, the trial court exercise its discretion to strike the firearm enhancements under Senate Bill No. 620 (2017-2018 Reg. Sess.).
Defendant's petition further alleged that he was not the actual killer; that he did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the second degree; that he was not a major participant in the underlying felony or did not act with reckless indifference to human life; and that the victim was not a peace officer.
Defendant requested the appointment of counsel. As an exhibit to the petition, defendant attached this court's decision in Pham, supra, C049751, C049992, for the court's consideration.
In December 2019, the People filed a motion to dismiss the petition, arguing Senate Bill 1437 (2017-2018 Reg. Sess.) was unconstitutional because it improperly amended several prior propositions, and that defendant had failed to make a prima facie showing that he was eligible for resentencing under section 1170.95 because he was convicted of malice murder.
Defendant's retained counsel filed a reply to the People's motion to dismiss, arguing he had made the requisite prima facie showing he was entitled to relief under section 1170.95 and that Senate Bill 1437 (2017-2018 Reg. Sess.) was constitutional. Defendant's reply contended that he was convicted of second degree murder and two counts of attempted murder as an aider and abettor under the natural and probable consequences doctrine because the jury instruction on implied malice included natural consequences language.
After considering the parties' briefing, but before holding a hearing, the trial court denied the petition, finding defendant had failed to make the requisite prima facie showing. The court found, after reviewing the court's underlying file for the case, as well as our unpublished opinion in Pham, that defendant was convicted of second degree murder while personally using and discharging a firearm causing great bodily injury or death, and that he was not convicted under a theory of felony murder or murder under a natural and probable consequences theory, as the jury was not instructed on those theories.
In so ruling, the court rejected defendant's argument that because the jury instruction on implied malice contained the words" 'natural consequences of the act are dangerous to human life, '" that the jury could have convicted him of murder on a natural and probable consequences theory. The theories of implied malice murder and murder under the natural and probable consequences doctrine, the court explained, were distinctly different. Implied malice was a mental state necessary for second degree murder, either as a principal or direct aider and abettor, and the natural and probable consequences doctrine was a theory of liability by which an aider and abettor who intends to aid a less serious target crime could be convicted of a greater crime committed by his confederate. The court noted that it was not alleged that the murder occurred in the commission of, or as a result of, another offense; instead, the only offenses charged were the murder of Khamphoumy and attempted murder of the two other shooting victims.
Given its finding that defendant had failed to make a sufficient prima facie showing, the court did not address the prosecution's constitutional challenge to the legislation. Defendant timely appealed.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that this court review the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief arguing that the trial court erred in denying his section 1170.95 petition because the record of conviction shows that the instruction given to the jury on implied malice encompassed the concept of natural and probable consequences. Because Senate Bill 1437 (2017-2018 Reg. Sess.) eliminated natural and probable consequences murder, defendant contends he is entitled to relief under section 1170.95. We disagree.
The Legislature enacted Senate Bill 1437 (2017-2018 Reg. Sess.) "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(f).) The bill amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2 & 3.) It also added a new section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, § 4.)
Senate Bill 1437 (2017-2018 Reg. Sess.) redefined malice under section 188 to require that a principal acted with malice aforethought. Now, section 188, subdivision (a)(3) provides in relevant part: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime."
Section 189 was amended to include new subdivision (e), which provides: "(e) A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer[;] [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree[; and] [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." (Stats. 2018, ch. 15, § 3.)
Newly enacted section 1170.95 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 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 . . . . [¶] (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).)
In this case, the trial court properly considered its own files as well as our unpublished opinion in Pham in determining that defendant was convicted of second degree murder while personally using and discharging a firearm causing great bodily injury or death after the jury was instructed on express and implied malice murder. (People v. Lewis (2021) 11 Cal.5th 952, 971-972 [trial court may consider record of conviction when determining whether a petitioner has a made a sufficient prima facie showing for relief under section 1170.95]; id. at p. 972 [appellate opinions are generally considered to be part of the record of conviction]; People v. Soto (2020) 51 Cal.App.5th 1043, 1055 [jury instructions are part of the record of conviction], review granted on other grounds Sept. 23, 2020, S263939.) The record shows the jury was not instructed on felony murder or murder based on the natural and probable consequences doctrine, and, thus, defendant could not have been convicted of second degree murder based on such theories.
The fact that the court's instruction on implied malice and second degree murdercontained natural consequences language does not mean the jury was instructed on natural and probable consequences murder. As the trial court properly noted, the "natural consequences" language in the instructions "do[] not transform [defendant's] conviction into one for murder under the natural and probable consequences doctrine within the meaning of section 1170.95." (People v. Soto, supra, 51 Cal.App.5th at p. 1058, rev.gr.)
The court instructed the jury with CALJIC No. 8.11, which provides in relevant part: "Malice is implied when: [¶] 1. The killing resulted from an intentional act; [¶] 2. The natural consequences of the act are dangerous to human life; and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life." The court also instructed the jury with CALJIC No. 8.31, which provides in part: "Murder of the second degree is the unlawful killing of a human being when: [¶] 1. The killing resulted from an intentional act, [¶] 2. The natural consequences of the act are dangerous to human life, and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for human life."
Implied malice murder and natural and probable consequences murder are two distinct concepts. (Id. at pp. 1055-1059.) Because the jury was not instructed on any target crime upon which second degree murder based on a natural and probable consequences theory could be predicated, he was necessarily convicted as a direct aider and abettor to second degree murder, as the court found.
The court did not err in denying defendant's petition for failure to make the requisite prima facie showing under section 1170.95. And we find no other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The order denying defendant's section 1170.95 petition for resentencing is affirmed.
We concur: BLEASE, Acting P. J. MAURO, J.