Opinion
C094261
02-09-2022
THE PEOPLE, Plaintiff and Respondent, v. HOUA LAO, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 02F01534)
HOCH, J.
In 2005, a jury found defendant Houa Lao guilty of first degree murder and found true the special circumstance the intentional murder was perpetrated by means of discharging a firearm from a motor vehicle at a person outside the vehicle with the intent to inflict death. Defendant appeals the denial of his petition for resentencing pursuant to Penal Code section 1170.95. His attorney filed a brief stating the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After considering defendant's supplemental brief, which raises issues that could have been raised in his original direct appeal, we affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Statement of Facts
We summarize the relevant facts of this case from our prior opinion. (People v. Her (Nov. 30, 2007, C051473) [nonpub. opn.] (Her).)
Upon defendant's motion we incorporated this case by reference.
After a high-speed chase, police arrested defendant in connection with a drive-by shooting between rival gangs in Sacramento. Defendant was in the car from which shots were fired at two rival gang members and a third person: Fong Vue, V.H., and Y.X. Fong Vue died a few days later as a result of shotgun wounds to the head. Y.X. was injured in the gunfire and tentatively identified defendant as one of the shooters. Police lifted defendant's fingerprint from the door of the car, and discovered shotgun casings inside the car. Police also found a shotgun in the area where the chase occurred, and at defendant's home they found three unexpended shotgun shells matching those located in the car.
The jury found defendant guilty of first degree murder (§ 187, subd (a)), premeditated attempted murder (§§ 664/187, subd. (a)), and discharging a firearm from a vehicle (former § 12034, subd. (d)), with true findings he caused great bodily injury (§ 12022.53, subd. (d)), discharged a firearm (§ 12022.53, subd. (c)), and committed the offense to benefit a criminal street gang (§ 186.22, subd. (b)(1)). It found true the special circumstance allegation the murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person and persons outside of the vehicle, with the intent to inflict death. (§ 190.2, subd. (a)(21).) The trial court sentenced defendant to life without the possibility of parole supplemented by an indeterminate consecutive term of 25 years to life plus 20 years. We affirmed the conviction on direct appeal.
B. Petition for Resentencing Under Section 1170.95
Defendant filed a petition under Senate Bill No. 1437 (2017-2018 Reg. Sess.) to have his murder conviction vacated and to be resentenced. Defendant's section 1170.95 petition declared he met the requirements for relief. Defendant checked the boxes he was not the actual killer, he did not aide or abet the actual killer with the intent to kill, he was not a major participant or acting with reckless indifference to human life, and the victim was not a peace officer. The court appointed counsel for defendant and the parties briefed whether defendant had stated a prima facia case for relief under section 1170.95.
In ruling on the petition, the trial court concluded defendant was not eligible to seek relief under section 1170.95. The trial court noted the basis for defendant's murder conviction remained unchanged by the Legislature's change to the felony murder or the natural and probable consequences doctrine and defendant's jury had not been instructed on the felony-murder rule or on the natural and probable consequences theory. The trial court also found the jury's true finding as to the drive-by special circumstances enhancement (§ 190.2, subd. (a)(21)) established the jury found defendant either was the actual killer or an aider and abettor in that crime who acted with the intent to kill. The trial court denied the petition.
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.
Review pursuant to Wende or its federal constitutional counterpart Anders v. California (1967) 386 U.S. 738 is required only in the first appeal of right from a criminal conviction. (Pennsylvania v. Finley (1987) 481 U.S. 551, 555; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537; People v. Serrano (2012) 211 Cal.App.4th 496, 500-501.)
California's "Wende procedure" does not apply to appeals such as this one which is from a denial of postconviction relief. (People v. Figueras (2021) 61 Cal.App.5th 108, review granted May 12, 2021, S267870; People v. Flores (2020) 54 Cal.App.5th 266; People v. Cole (2020) 52 Cal.App.5th 1023, review granted Oct. 14, 2020, S264278.) This is so because this is not the defendant's first appeal as of right. (See In re Sade C. (1996) 13 Cal.4th 952, 986 [Wende/Anders review "mandated for only one [situation] - the indigent criminal defendant in his first appeal as of right"].)
Here, defendant filed a supplemental brief raising several issues, which we shall address. Defendant challenges the jury's true finding on the gang enhancement allegation asserting (1) there was no history of him actively participating in a criminal street gang at trial, and (2) the evidence at trial was insufficient to establish his gang did engage in the requisite primary gang activities. He also argues his status as a 19-year-old youth offender at the time of the crime warranted a lesser sentence. He further contends he was not competent to stand trial. Next, defendant argues he was not allowed the opportunity to present mitigating evidence at sentencing. Finally, defendant claims no evidence was presented at trial he fired the shotgun that killed the victim.
The challenges raised in defendant's supplemental brief to the evidentiary and sentencing issues at his prior trial are waived. (People v. Jordan (2018) 21 Cal.App.5th 1136, 1143 [the doctrine of waiver precludes successive appeals based on issues ripe for consideration in the prior appeal and not brought in that proceeding]; People v. Senior (1995) 33 Cal.App.4th 531, 538 ["where a criminal defendant could have raised an issue in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent a showing of justification for the delay"].) The time to appeal these issues has long since passed, and because he did not raise them in his initial appeal in 2005, he is precluded from belatedly doing so now.
DISPOSITION
The order denying defendant's section 1170.95 petition is affirmed.
We concur: ROBIE, Acting P. J., RENNER, J.