Opinion
C089537
04-17-2020
In re LEE THAO on Habeas Corpus.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19HC00158)
Defendant Lee Thao appeals the trial court's denial of his petition for resentencing under Penal Code section 1170.95, arguing the trial court failed to follow the proper procedure before denying his petition, including first appointing counsel. We affirm because we are bound by our prior decision concluding the jury properly found defendant had the intent to kill, rendering him ineligible for relief.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
We summarized the relevant facts of this case in defendant's prior appeal (People v. Eng Thao (May 21, 1998, C023196) [nonpub. opn] (Eng Thao)): "Following a series of altercations between rival gangs, gang member Joe Keoudone was killed in a drive-by shooting. An information charged defendants Eng Thao, [defendant,] and Shou Kee Thao with murder (Pen. Code, § 187), conspiracy to commit murder (Pen. Code, § 182), and unlawfully taking an automobile (Veh. Code, § 10851). The information further alleged defendants committed the offenses 'for the benefit of, at the direction of, and in association with criminal street gangs.' (Pen. Code, § 186.22.) In addition, the information alleged that Eng personally used a firearm (Pen. Code, § 12022.5) and that [defendant] and Shou were principals in an offense where one principal was armed with a firearm (Pen Code, § 12022, subd. (a)(1)). A jury found [defendant] guilty of first degree murder, conspiracy and auto theft." (Eng Thao, supra, C023196 [pp. 1-2], fn. omitted.)
We cite these facts from our unpublished opinion as being relevant to the law of the case doctrine. (Cal. Rules of Court, rule 8.1115(b)(1); People v. Shuey (1975) 13 Cal.3d 835, 841-843 [explaining and confirming " 'law of the case' " doctrine].)
Defendant appealed arguing, among other things, there was insufficient evidence supporting his conviction for murder and conspiracy because there was no evidence he had the intent to kill the victim. We found sufficient evidence supported a finding that he had the intent to kill because "[t]he jury found several overt acts were committed in furtherance of the murder . . . . The jury had before it sufficient evidence of [defendant's] involvement in each of these acts to infer his agreement to participate in the conspiracy." (Eng Thao, supra, C023196 [pp. 19-20], fn. omitted.) Thus, we affirmed defendant's conviction.
Following the enactment of Senate Bill No. 1437, defendant filed a petition for resentencing pursuant to section 1170.95. He stated he "did not kill, intend to kill, nor act with reckless indifference to human life" nor was he "a major participant in the felony." Defendant also requested appointment of counsel for resentencing.
The trial court denied defendant's section 1170.95 petition without first appointing counsel or obtaining briefing from the prosecutor. It concluded "it is beyond a reasonable doubt that the jury unanimously concluded that defendant . . . had acted with specific intent to kill, in finding defendant . . . guilty" of first degree murder and "guilty of conspiracy to commit 'Murder in the First Degree.' " Defendant timely appealed.
DISCUSSION
Defendant contends the trial court violated section 1170.95, subdivision (c) by denying his petition without first appointing counsel and obtaining briefing from the prosecutor. The People argue these steps were not necessary and even if they were, defendant was not prejudiced. We find any error was harmless.
Senate Bill No. 1437 was enacted to "amend the felony murder rule and the natural and probable consequences doctrine, . . . 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).) Senate Bill No. 1437 achieves these goals by amending section 188 to require that a principal act with express or implied malice and by amending section 189 to state that a person can be liable for felony murder only if (1) the "person was the actual killer"; (2) the person, with an intent to kill, was an aider or abettor in the commission of murder in the first degree; or (3) the "person was a major participant in the underlying felony and acted with reckless indifference to human life." (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 3; § 188, as amended by Stats. 2018, ch. 1015, § 2.)
Senate Bill No. 1437 also added section 1170.95 to provide the resentencing petition process. After a defendant submits a petition and the court does an initial review for missing information, subsection (c) of section 1170.95 provides, in part, "The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served." (§ 1170.95, subd. (c).)
We need not analyze the requirements of subdivision (c) because any error here would be harmless even under the more stringent beyond a reasonable doubt standard. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].) We concluded in Eng Thao that there was sufficient evidence supporting the jury finding defendant acted with the intent to kill. (Eng Thao, supra, C023196.) This conclusion is law of the case and is binding. (Friends of Spring Street v. Nevada City (2019) 33 Cal.App.5th 1092, 1106.) Defendant's intent to kill renders him ineligible for relief under Senate Bill No. 1437 (see §§ 189, subd. (e)(2), 1170.95, subd. (a)(3)) and it is beyond a reasonable doubt appointment of counsel or additional briefing could not have changed this. Thus, even if the trial court was required to do more before denying the petition, which we do not decide here, this error would have been harmless.
DISPOSITION
The order denying defendant's section 1170.95 petition is affirmed.
/s/_________
BUTZ, Acting P. J. We concur: /s/_________
MURRAY, J. /s/_________
RENNER, J.