Opinion
G057953
06-04-2020
THE PEOPLE, Plaintiff and Respondent, v. HIEU HO TRONG THAI, Defendant and Appellant.
Diane T. Letarte, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, Tamar Pachter and Nelson R. Richards, as Amicus Curiae in support of Defendant and Appellant. Todd Spitzer, District Attorney, and Seton B. Hunt, Deputy District Attorney, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 05ZF0082) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Steven D. Bromberg, Judge. Reversed and remanded for further proceedings. Diane T. Letarte, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, Tamar Pachter and Nelson R. Richards, as Amicus Curiae in support of Defendant and Appellant. Todd Spitzer, District Attorney, and Seton B. Hunt, Deputy District Attorney, for Plaintiff and Respondent.
* * *
In 2006, a jury found Hieu Ho Trong Thai guilty of first degree murder (Pen. Code, § 187. subd. (a); all further statutory references are to the Penal Code, unless otherwise stated), attempted premeditated murder (§§ 187, 664), and conspiracy to commit murder (§ 182, subd. (a)). After finding an evidentiary error harmless, we affirmed the judgment. (People v. Thai (June 27, 2007, G037234) [nonpub. opn.].)
In 2018, the Legislature enacted Senate Bill No. 1437 (Sen. Bill 1437), which limited accomplice liability under the felony murder rule and the natural and probable consequences doctrine by amending sections 188 and 189. (§§ 188, 189; see People v. Cruz (2020) 46 Cal.App.5th 740, 755 (Cruz); People v. Solis (2020) 46 Cal.App.5th 762, 768 (Solis).) Sen. Bill 1437 also implemented a process allowing persons previously convicted of murder under a natural and probable consequences theory or felony murder to petition the superior court for vacation of their murder convictions and for resentencing, if they could not be convicted of murder now based on the amendments to sections 188 and 189. (§ 1170.95.)
On March 18, 2019, Thai filed a petition for resentencing under section 1170.95. The petition alleged he was convicted of first degree murder under the natural and probable consequences doctrine, and that under Sen. Bill 1437 he could not now be convicted of murder.
The trial court denied the petition on the sole basis that Sen. Bill 1437 was unconstitutional because it improperly amended Propositions 7 and 115. In two recently published opinions, this court concluded Sen. Bill 1437 is constitutional because it neither adds any particular provision to nor subtracts any particular provision from either Proposition 7 or Proposition 115. (Cruz, supra, 46 Cal.App.5th at p. 747; Solis, supra, 46 Cal.App.5th at p. 769.) We decline to revisit those decisions. Accordingly, we reverse the trial court's order and direct the trial court to consider the merits of Thai's petition.
I
FACTUAL AND PROCEDURAL BACKGROUND
As recounted in our prior opinion, Thai and fellow gang members decided to "hunt" members of a rival gang in retaliation for prior acts. During the ensuing shootout between the two gangs, one of Thai's fellow gang member was shot and died. (People v. Thai (June 27, 2007, G037234 [nonpub. opn.].)
The jury found Thai guilty of (1) first degree murder; (2) attempted premeditated murder; and (3) conspiracy to commit murder. It also found true gang and firearm allegations. The trial court sentenced Thai to a total of 25 years to life in state prison.
After the Legislature enacted Sen. Bill 1437, Thai filed a petition requesting resentencing under section 1170.95. The District Attorney opposed the petition, arguing Sen. Bill 1437 violates the California Constitution. The District Attorney also argued Thai was statutorily ineligible for resentencing because he was a "major participant" and acted with reckless indifference to human life as defined by section 190.2.
The trial court denied the resentencing petition after concluding that Sen. Bill 1437 was unconstitutional. It did not address whether Thai was statutorily ineligible for resentencing relief.
II
DISCUSSION
Thai contends the trial court erred in denying his section 1170.95 petition. He argues Sen. Bill 1437 did not amend Propositions 7 and 115. The District Attorney renews his contention that Sen. Bill 1437 improperly amended both initiative. We disagree. As recently discussed in Cruz, supra, 46 Cal.App.5th 740, and Solis, supra, 46 Cal.App.5th 762, Sen. Bill 1437 did not amend either initiative.
Proposition 7 increased the penalties for first and second degree murder by amending section 190, and sought to strengthen and expand the death penalty by amending sections 190.1 through 190.5. (Cruz, supra, 46 Cal.App.5th at pp. 751-754; Solis, supra, 46 Cal.App.5th at pp. 775-776.) As we previously concluded, Sen. Bill 1437 does not amend Proposition 7 because Sen. Bill 1437 "does not take away from the initiative's statutory provisions; it does not authorize what Proposition 7 prohibits or prohibit what Proposition 7 authorizes; and it addresses an area related to but distinct from Proposition 7's provisions concerning the penalty for murder." (Cruz, supra, 46 Cal.App.5th at p. 757; accord, Solis, supra, 46 Cal.App.5th at p. 779.)
Proposition 115, among other things, amended section 189 by adding five serious felonies to the list of predicate offenses for first degree felony murder. (Cruz, supra, 46 Cal.App.5th at pp. 759-760; Solis, supra, 46 Cal.App.5th at pp. 780.) Sen. Bill 1437 does not amend Proposition 115 because it did not remove Proposition 115's five felonies from the list of predicate offenses. In addition, Sen. Bill 1437's restrictions on accomplice liability for felony murder did not constitute an amendment to Proposition 115 because Proposition 115 did not specifically authorize or prohibit restrictions on the application of first degree felony-murder rule to accomplices. (Cruz, supra, 46 Cal.App.5th at pp. 759-760; Solis, supra, 46 Cal.App.5th at pp. 781-782.) In sum, Sen. Bill 1437 does not unconstitutionally amend Proposition 7 or Proposition 115.
III
DISPOSITION
The order is reversed and the matter remanded for further proceedings on Thai's petition pursuant to section 1170.95.
ARONSON, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.