Opinion
H050181
10-05-2023
THE PEOPLE, Plaintiff and Respondent, v. THANH TOAN DANG, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C1094291)
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
In 2012, defendant Thanh Toan Dang was convicted of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 187, 664, subd. (a)) and assault with a semiautomatic firearm (§ 245, subd. (b)). Various allegations were found true. Defendant was ultimately sentenced to an indeterminate term of 39 years to life consecutive to a determinate term of five years.
All further statutory references are to the Penal Code unless otherwise indicated.
In April 2022, defendant filed a petition for resentencing under former section 1170.95 (now section 1172.6). In the petition, he contended that he could not be presently convicted of attempted murder because of changes in the law. The trial court denied the petition without issuing an order to show cause, finding that defendant was ineligible for relief as a matter of law.
Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. For purposes of clarity, we refer to the statute as section 1172.6 throughout the rest of this opinion.
Defendant filed a notice of appeal from the trial court's order denying his petition for resentencing. Defendant's appointed counsel filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216, and purportedly pursuant to People v. Wende (1979) 25 Cal.3d 436, that did not raise any issues and asked this court to conduct an independent review of the record. We notified defendant that pursuant to Delgadillo, he may submit a supplemental brief on his own behalf and that failure to do so may result in the appeal being dismissed as abandoned.
Defendant has filed a supplemental brief. For reasons that we will explain, we will affirm the trial court's order denying his petition for resentencing.
II. BACKGROUND
Our brief summary of the offenses is for background purposes only and is taken from this court's opinion from a prior appeal by defendant. Defendant's appointed counsel in the current appeal has similarly relied on the same prior appellate opinion to provide a statement of facts in the opening brief on appeal. We have not relied on the statement of facts from the prior opinion in analyzing the merits of defendant's current appeal.
The victim was at the same restaurant as defendant, who was with a separate group of people. On a prior occasion, the pair had been in a physical altercation. On this occasion at the restaurant, the victim was shot in the knee and in the back. Although the victim did not identify defendant at trial, the victim told the police that defendant was the one who had shot him, and the victim identified defendant at the preliminary hearing.
B. Defendant's Convictions
Defendant was convicted by jury of willful, deliberate, and premeditated attempted murder (§§ 187, 664, subd. (a)) and assault with a semiautomatic firearm (§ 245, subd. (b)). The jury found true allegations that defendant personally and intentionally discharged a firearm (§ 12022.53, subd. (d)) during the attempted murder and allegations that defendant personally used a firearm (§ 12022.5, subd. (a)) and inflicted great bodily injury (§ 12022.7, subd. (a)) during the assault with a semiautomatic firearm. The trial court found true allegations that defendant had previously been convicted of a prior serious felony (§ 667, subd. (a)) and a strike (§§ 667, subds. (b)-(i), 1170.12). The trial court sentenced defendant to a prison term of 30 years to life.
C. Defendant's Prior Appeals
Defendant appealed, and this court reversed the judgment and remanded the matter for resentencing. (People v. Dang (July 30, 2014, H038871) [nonpub. opn.].)
On remand, defendant was resentenced to an indeterminate term of 39 years to life consecutive to a five-year determinate term. Defendant again appealed, and this court affirmed the judgment. (People v. Dang (May 9, 2016, H042807) [nonpub. opn.].)
D. Defendant's Petition for Resentencing
In 2022, defendant filed a petition for resentencing under section 1172.6. In the petition, he contended that the prosecutor had been allowed to proceed against him "under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine." Defendant argued that he could not be presently convicted of murder or attempted murder because of the changes made to sections 188 and 189, effective January 1, 2019.
In opposition, the prosecutor contended that defendant was not convicted under the felony murder rule or the natural and probable consequences doctrine, and that he was the actual killer and/or the jury necessarily found malice personal to defendant. The prosecutor filed a request for judicial notice of the abstract of judgment, the verdict forms, the jury instructions, and this court's 2014 opinion regarding defendant's first appeal.
The jury instructions reflect that, to find defendant guilty of attempted murder, the jury had to find that defendant "intended to kill" the person. Further, to find true the allegation that the attempted murder was done willfully and with deliberation and premeditation, the jury had to find that defendant "intended to kill when he acted"; "he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill"; and he "decided to kill before acting."
At a hearing on May 23, 2022, the trial court appointed counsel for defendant. Regarding the prosecutor's request for judicial notice of the abstract of judgment, the verdict forms, the jury instructions, and this court's opinion from defendant's first appeal, defense counsel expressed no objection to the request for judicial notice to the extent the documents were what they were purported to be, but counsel stated that defendant was "not conceding anything substantive, for example, [the] statement of facts." The prosecutor responded that he had "no intention of using the Court of Appeal opinion outside of that which is permitted" by section 1172.6. The trial court granted the request for judicial notice. The matter was continued to a further date.
Section 1172.6 provides that at the evidentiary hearing on the petition for resentencing, the trial court "may . . . consider the procedural history of the case recited in any prior appellate opinion." (Id., subd. (d)(3).)
On June 8, 2022, a hearing was held on defendant's petition for resentencing. The prosecutor contended that the judicially noticed records showed that defendant was "ineligible as a matter of law" because "he was not convicted of any offense under felony murder or the natural and probable consequences doctrine." Defense counsel acknowledged that the prosecutor had "correctly recited the facts on the record," and defense counsel submitted the matter without providing any argument.
The trial court determined that defendant was "ineligible for resentencing . . . as a matter of law" and denied his petition for resentencing without issuing an order to show cause. The court explained that the judicially noticed documents "collectively . . . reveal[ed]" that defendant was not convicted of a listed crime "under either the felony murder or under the natural and probable consequences doctrine, and that [he] was the actual killer and/or the jury necessarily found malice personal to [him]."
E. The Current Appeal
On July 6, 2022, defendant filed a notice of appeal from the denial of his resentencing petition.
III. DISCUSSION
A. General Legal Principles Regarding Section 1172.6
Section 1172.6 allows eligible defendants to file a petition for resentencing based on changes in the law regarding murder, attempted murder, and manslaughter. (See id., subd. (a).) Regarding attempted murder, the relief provided by section 1172.6 "applies by its terms only to attempted murders based on the natural and probable consequences doctrine. [Citation.]" (People v. Coley (2022) 77 Cal.App.5th 539, 548 (Coley) [discussing former § 1170.95, subd. (a), now § 1172.6, subd. (a)].)
Upon the filing of a petition for resentencing, and "[a]fter the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief." (§ 1172.6, subd. (c).) "If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition. [Citations.] If, instead, the defendant has made a prima facie showing of entitlement to relief, 'the court shall issue an order to show cause.' [Citation.]" (People v. Strong (2022) 13 Cal.5th 698, 708.) "[T]he court may appropriately deny a petition at the prima facie stage if the petitioner is ineligible for relief as a matter of law." (People v. Harden (2022) 81 Cal.App.5th 45, 52 (Harden).) "For example, if the record shows that the jury was not instructed on . . . the natural and probable consequences . . . doctrine[], then the petitioner is ineligible for relief as a matter of law. [Citation.]" (Ibid.)
In Coley, the defendant was convicted of attempted murder. (Coley, supra, 77 Cal.App.5th at p. 542.) The jury was instructed that the attempted murder charge required a finding that the defendant" 'intended to kill [the victim].'" (Id. at p. 548.) The jury was not instructed on the natural and probable consequences doctrine. (Ibid.) The appellate court concluded that the trial court properly denied the defendant's petition for resentencing without issuing an order to show cause. (Ibid.; see id. at p. 545.)
"We independently review a trial court's determination on whether a petitioner has made a prima facie showing. [Citation.]" (Harden, supra, 81 Cal.App.5th at p. 52.)
B. Analysis
In defendant's supplemental brief, we understand him to make the following contentions: (1) "[t]he events on the day in question were not planned, or premeditated by" defendant and he did not have any "malice" towards the victim; (2) "the firearms could not be tested by [defendant] due to them being destroyed, so a ballistics expert could not examine them and give testimony as regards them"; (3) "the victim . . . did not identify [defendant] as the individual that shot him in his trial court testimony"; (4) "[a]nother witness . . . testified at trial on the record that she had made a mistake in her identification and it was not [defendant] that did the shooting"; (5) the trial court stated words to the effect that" 'we should be dismissing this case right now because of no witnesses in this case that the defendant committed this particular crime' "; (6) there were "multiple" people involved in the incident and "the incident could be viewed as a mosh pit or a frenzy event"; (7) and "there were multiple weapons involved," "[t]he weapons were taken from another person who had possession of them," and "no weapon was taken from [defendant] nor were his prints" recovered.
We understand defendant to challenge his conviction for attempted murder. However, the purpose of section 1172.6 is" 'not to provide a do-over on factual disputes that have already been resolved.'" (People v. Farfan (2021) 71 Cal.App.5th 942, 947.) "The mere filing of a [section 1172.6] petition does not afford [a defendant] a new opportunity to raise claims of trial error or attack the sufficiency of the evidence supporting the jury's findings." (Ibid.) Consequently, in this appeal from the denial of his section 1172.6 petition, defendant may not raise claims related to the sufficiency of the evidence supporting the jury's finding that he was guilty of attempted murder.
As relevant to this appeal, the jury was instructed that to find defendant guilty of attempted murder, it had to find, among other matters, that "defendant intended to kill" the victim. With respect to determining whether defendant was guilty of attempted murder, the jury was not instructed regarding the natural and probable consequences doctrine. Under these circumstances, the trial court properly denied defendant's petition for resentencing without issuing an order to show cause. (See Coley, supra, 77 Cal.App.5th at pp. 542, 545, 548.)
IV. DISPOSITION
The order denying defendant's petition for resentencing is affirmed.
WE CONCUR: DANNER, J. BROMBERG, J.