Opinion
G058858
03-11-2021
THE PEOPLE, Plaintiff and Respondent, v. LAN T. NGUYEN, Defendant and Appellant.
Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Michael D. Butera, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C-49610) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
In 1982, a jury convicted defendant Lan T. Nguyen of second degree murder, in violation of Penal Code section 187. Thereafter, defendant was referred to the Department of Corrections for a diagnostic study pursuant to section 1203.03. As a result of that study, defendant was committed to Patton State Hospital where she remained for approximately nine months. Defendant was subsequently sentenced to a state prison term of 15 years to life.
All subsequent statutory references are to the Penal Code unless otherwise stated.
In December 2019, defendant filed a petition for resentencing under section 1170.95. The court summarily denied the petition, explaining: "The petition does not set forth a prima [facie] case for relief under the statute. A review of court records indicates defendant is not eligible for relief under the statute because the defendant does not stand convicted of murder or defendant's murder conviction[] is not based on felony-murder or on a natural and probable consequences theory of vicarious liability for aiders and abettors."
Defendant appealed the decision and we appointed counsel to represent her. Counsel submitted a brief pursuant to the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, advising the court she was unable to find an arguable issue. We subsequently issued an order directing the parties to brief the following questions: "1. In determining whether a petitioner has made a prima facie showing of entitlement to relief under . . . section 1170.95, may the trial court consider information found in the probation and sentencing reports included in the record on appeal dated January 17, 1983, February 16, 1984, and May 31, 1984? [¶] 2. Is there any other information in the record on appeal from which it can be determined whether appellant is eligible for relief under Penal Code section 1170.95? [¶] 3. Is there any other information in the available record of conviction which would establish whether appellant is eligible for relief under . . . section 1170.95? If so, please identify the document or documents and attach them to the brief."
Because this is not defendant's first appeal as a matter of right, and because defendant herself has not filed a supplemental brief after being given an opportunity to do so, we are under no obligation to conduct an independent review of the record. (People v. Scott (2020) 58 Cal.App.5th 1127, 1130-1131.) But we have discretion to do so. (Id. at p. 1131; People v. Flores (2020) 54 Cal.App.5th 266, 269 [court should conduct independent review in the interest of justice].) Here, a cursory review of the extremely limited record on appeal immediately suggested an arguable issue—whether probation reports may be considered when evaluating defendant's eligibility for relief under section 1170.95. We exercise our discretion in the interest of justice to review that issue. Our review is additionally suggested by our inability to find any appellate opinion reviewing defendant's original conviction.
The parties have briefed the questions we posed. Defendant takes the position that: (1) "[A]ppellant stated a prima facie claim for resentencing, and the trial court cannot look at the record of conviction at this stage"; (2) "There are no other documents in the current record on appeal that establish whether appellant is eligible for section 1170.95 relief"; and (3) "There are no other documents in the record of conviction that establish appellant is eligible for section 1170.95 relief." Counsel explained her answer to the third question, indicating she had reviewed the superior court file including: The information and felony complaint; exhibit list; minute orders; jury instructions; verdict form; Court of Appeal opinion; judgment of commitment to state prison; abstract of judgment; report—indeterminate sentence, other sentencing choice; and order of commitment.
Counsel's listing of the jury instructions and the Court of Appeal opinion as documents she had reviewed is interesting. We do not have those documents in the record on appeal. As we discuss below, jury instructions and the appellate opinion on a defendant's direct appeal have often been considered by the courts when determining whether a petitioner is eligible for resentencing under section 1170.95. Counsel's statement that she has reviewed those documents and they do not establish that defendant is eligible for relief could be viewed as a judicial admission that the record of conviction establishes that she is ineligible for relief as a matter of law. Recall the "negative pregnant" rule of pleading. "A negative pregnant is such a form of negative expression as may imply or carry with it an affirmative." (Huntoon v. Hurley (1955) 137 Cal.App.2d 33, 37.) We decline, however, to base our decision on this potential judicial admission. We are concerned that counsel may be mistaken in listing the documents presently contained in the superior court file. We have done extensive electronic searching for a Court of Appeal opinion reviewing defendant's conviction and have not found such an opinion. And despite our instruction to attach a copy of any document that would establish defendant's eligibility, counsel has simply taken the position that we cannot look at the record of conviction—thus, in her view, none of the documents in the court's file would establish eligibility.
The Attorney General has taken the position that the probation reports may not be considered in determining eligibility for relief, but that the allegations made in the information and the verdict of the jury, finding that defendant was guilty "as charged in the information," establishes that defendant is ineligible for resentencing as a matter of law.
For the reasons below, we reject the arguments of both parties, but nevertheless conclude the court did not err in summarily ruling that a prima facie case for eligibility for relief under section 1170.95 had not been established. We affirm the postjudgment order.
FACTS
The record in this case is extraordinarily sparse. It is comprised only of: (1) a felony complaint charging defendant with a single count—the murder of David Duong; (2) an information charging defendant with the same crime; (3) a jury verdict finding defendant guilty of murder in the second degree; (4) a pre-sentence probation and sentencing report filed on January 17, 1983; (5) an order committing defendant to treatment at Patton State Hospital under section 1370 and a report to the judicial council of the sentence choice other than state prison; (6) a supplemental probation and sentencing report dated February 16, 1984, following the reinstatement of criminal proceedings; (7) a further supplemental probation and sentencing report dated May 31, 1984, reporting that defendant had been referred, on February 16, 1984, for another diagnostic study under section 1203.03, and had recently been returned; (8) a copy of the February 16, 1984 order referring defendant for the diagnostic study; (9) an August 14, 1984 minute order and a judgment of commitment sending defendant to state prison for 15 years to life and a report to judicial council regarding the sentence; (10) the minute order denying defendant's present petition; and (11) defendant's section 1170.95 petition.
Using a preprinted form for her section 1170.95 petition, defendant checked boxes alleging: (1) "A complaint, information, or indictment was filed against me that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine." (2) "At trial, I was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine." (3) "I could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code § § 188 and 189, effective January 1, 2019."
DISCUSSION
Senate Bill No. 1437 (2017-1028 Reg. Sess.) (Senate Bill 1437) "amend[ed] 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, subd. (f).) To that end, Senate Bill 1437 amended sections 188 and 189 and, as relevant here, provided a procedure in section 1170.95 by which defendants could seek resentencing if they could not now be convicted of murder in view of the changes to sections 188 and 189.
Section 1170.95, subdivision (a), provides, in relevant part, "A person convicted of felony murder or murder under a natural and probable consequences theory may 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 . . . ." The statute also sets forth the procedure to be followed by the trial court: "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. . . . If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause." (Id., subd. (c).)
In its initial review to determine whether a petitioner has made a prima facie showing of eligibility, the court examines whether the petitioner has stated his or her eligibility for relief. The petitioner must allege: (1) an accusatory pleading was filed against him or her allowing prosecution under the felony-murder rule or the natural and probable consequences doctrine (§ 1170.95, subd. (a)(1)); (2) he or she was convicted of murder following trial, or pleaded guilty to murder in lieu of a trial at which he or she could have been so convicted (id., subd. (a)(2)); and (3) he or she could not be convicted of murder after the 2019 amendments to sections 188 and 189 (§ 1170.95, subd. (a)(3)). If the petitioner is ineligible for relief, the court may summarily deny the petition. Relief under section 1170.95 is available only to those "'convicted of felony murder or murder under a natural and probable consequences theory . . . .'" (People v. Martinez (2019) 31 Cal.App.5th 719, 723.) Relief under the statute is not available to the actual killer or to "direct aiders and abettors of murder because such persons necessarily 'know and share the murderous intent of the actual perpetrator.'" (People v. Lewis (2020) 43 Cal.App.5th 1128, 1135, review granted March 18, 2020, S260598.)
As noted throughout this opinion, the Supreme Court has granted review in several of the cases we cite. Pending the review and filing of the Supreme Court's opinions, citations to these cases have "no . . . precedential effect, and may be cited for potentially persuasive value only." (Cal. Rules of Court, rule 8.1115(e)(1).)
The issue here is whether the court may look beyond the allegations in the petition to evaluate whether a prima facie showing of eligibility under section 1170.95 has been established, and, if so, what type of information may be considered in making that determination. In People v. Lewis supra, 43 Cal.App.5th 1135, review granted, the court held that (1) a trial court may rely on the record of conviction in determining whether the defendant's petition makes a prima facie showing that he or she falls within the provisions of the statute, and (2) the record of conviction includes the opinion of the Court of Appeal in the underlying conviction. (Id. at p. 1137.) Other Courts of Appeal have also held that trial courts may look beyond the petition to determine a petitioner's prima facie case for eligibility. (See, e.g., People v. Verdugo (2020) 44 Cal.App.5th 320, 329, review granted Mar. 18, 2020, S260493 [trial court properly considered appellate opinion on the petitioner's direct appeal]; People v. Tarkington (2020) 49 Cal.App.5th 892, 899, review granted August 12, 2020, S263219 [same]; contra, People v. Cooper (2020) 54 Cal.App.5th 106, 123 , review granted Nov. 10, 2020, S264684.) The Supreme Court will, of course, have the last word on this issue. The high court limited its review in People v. Lewis, supra, 43 Cal.App.5th 1128, review granted, to the following issues: "(1) May superior courts consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under . . . section 1170.95? (2) When does the right to appointed counsel arise under . . . section 1170.95, subdivision (c)?" (People v. Lewis, S260598, Supreme Court Minutes, Mar. 17, 2020, p. 364.)
Here, the court did not specify what materials it had reviewed in determining that defendant was ineligible for relief under the statute. Courts considering the initial eligibility issue have often relied on information contained in the record of conviction. (See e.g., People v. Gomez (2020) 52 Cal.App.5th 1, 15-16 [jury instructions and prior appellate opinion], review granted Oct. 14, 2020, S264033; People v. Falcon (2020) 57 Cal.App.5th 272, 276 [preliminary hearing testimony], review granted Jan. 27, 2021, S266041; People v. Verdugo, supra, 44 Cal.App.5th 320, 324-325, [jury instructions and prior appellate opinion], review granted.) But here, unlike the record in most appeals, except for the accusatory pleading and the verdict, we have no record of any of the original trial court proceedings. We lack a reporter's transcript of any trial or preliminary hearing testimony, we lack a copy of the jury instructions, and, importantly, defendant in this case appears not to have taken a direct appeal. Thus, we also lack a prior appellate opinion. The only material information in the record is the accusatory pleading, the verdict, and the probation and sentencing reports listed above in our statement of facts.
In other contexts, courts have held that a probation report is "not part of the record" of conviction. (See, e.g., People v. Trujillo (2006) 40 Cal.4th 165, 179 ["[D]efendant's statements, made after a defendant's plea of guilty has been accepted, that appear in a probation officer's report prepared after the guilty plea has been accepted are not part of the record of the prior conviction, because such statements do not 'reflect[] the facts of the offense for which the defendant was convicted'"]; see also People v. Reed (1996) 13 Cal.4th 217, 230 [holding that a fragment from a probation report was inadmissible hearsay, without deciding whether it was part of the record of conviction].) Trujillo and Reed, however, are distinguishable. These opinions address whether a trial court can rely on portions of a probation report when determining whether a defendant's prior conviction qualifies as a serious or violent felony and the probation reports at issue were the probation reports from the prior convictions, not the current offenses. The findings of fact at issue in Trujillo and Reed would potentially result in the defendant suffering an enhanced punishment. In that context, it is appropriate to utilize a narrow definition of the record of conviction. In contrast, section 1170.95 is a leniency statute and eligibility under the statute will potentially result in a decreased punishment. Thus, it may be appropriate to utilize a broader definition of the record of conviction.
In the context of section 1170.95, several cases have considered not only those materials found in the "record of conviction" as defined in Trujillo but have also hinted that the scope of permissible materials may be broader. Thus, in Lewis, supra, 43 Cal.App.5th 1135, review granted, the court suggested a court's "own files and the record of conviction" are proper matters for consideration. (Id. at p. 1137, italics added.) And in People v. Verdugo, supra, 44 Cal.App.5th 320, review granted, the court noted that "documents in the court file or otherwise part of the record of conviction that are readily ascertainable—should similarly be available to the court in connection with the first prima facie [eligibility] determination . . . ." (Id. at p. 329, italics added.)
Support for the consideration of a broader scope of permissible materials is found in cases addressing what materials a court may consider in similar resentencing proceedings. Some courts have held that the limited use of hearsay is permitted when determining eligibility for resentencing, provided there is a substantial basis for believing the hearsay information is reliable. (People v. Sledge (2017) 7 Cal.App.5th 1089, 1095 [In Proposition 47 resentencing, "limited use of hearsay such as that found in probation reports is permitted, provided there is a substantial basis for believing the hearsay information is reliable"]; People v. Hall (2019) 39 Cal.App.5th 831, 833 [In Proposition 64 resentencing, "reliable hearsay evidence in arrest and probation reports is admissible to prove ineligibility for Proposition 64 relief"].)
Proposition 47 redesignated certain theft offenses as misdemeanors and provided for resentencing for eligible defendants previously convicted of a felony offense. (People v. DeHoyos (2018) 4 Cal.5th 594, 597.) Proposition 64 reduced or eliminated criminal penalties for certain drug offenses and provided for resentencing for eligible defendants seeking a reduction in sentence. (People v. Boatwright (2019) 36 Cal.App.5th 848, 851.)
Here, the Attorney General has taken the position that the probation reports in the record may not be used to determine eligibility. We disagree with that overly broad assertion of a rule. The Attorney General relies on unnecessary parts of the probation reports, arguing that "statements contained in the probation report, which themselves merely summarize the unsworn factual recitation from a police report, are not properly substituted for dispositive evidence regarding the nature of the underlying offense." But the probation reports here contain more than a recitation from a police report; they contain admissions by defendant which resolve the issue of whether she is entitled to relief under section 1170.95. And when considering the use of the probation report here, it must be kept in mind that the only issue to be decided is whether defendant was convicted as the actual perpetrator or as the direct aider and abettor of the crime (not eligible for resentencing), as opposed to being convicted under the felony-murder rule or under the natural and probable consequences doctrine of aiding and abetting liability (eligible for resentencing).
The Attorney General instead argues that because the information alleged defendant "[did] willfully, unlawfully and feloniously, and with malice aforethought kill [David Doung], a human being" and the jury's verdict found that defendant was guilty "as charged in the information," it was necessarily true that defendant was the actual killer and had acted with the necessary mens rea. Further, because defendant was not charged with any other offense, liability under the felony-murder rule or the natural and probable consequences doctrine was foreclosed. We decline to analyze the case on this basis. It has been "long held that under the state's statutory scheme, an accusatory pleading charging a defendant with murder need not specify the theory of murder on which the prosecution intends to rely." (People v. Diaz (1992) 3 Cal.4th 495, 557.) And the failure to charge another offense is not dispositive as a matter of law. The absence of another charge may simply have been the result of prosecutorial discretion, although we do acknowledge that, normally, if felony murder were the theory, it is unlikely the prosecution would have failed to allege the other felony. We simply conclude there is another path that provides a more reliable analysis of the issue presented.
Apart from recitations summarizing the police reports, the probation officer here reported the content of interviews he had conducted with defendant, and it is the report of the interviews with defendant that are both admissible and dispositive. In describing the interviews, the probation officer related that defendant was "advised of the information contained within the corresponding police reports." Presented with information from the police report, defendant stated, "I don't know about these things." She stated that "[t]he entire day in question she remained with the [the one-month old victim] and his older one-year-old brother, and denie[d] ever dropping or accidentally striking the child in any way during the course of the day." "She was quite emphatic in relating that neither her husband nor her one-year-old child could have been responsible for these injuries, and she once again admitted that she was the only person in the vicinity of the child the entire day . . . ." (Italics added.)
The probation officer again interviewed defendant approximately one year later after she returned from treatment at Patton State Hospital. Defendant "was once again adamant in relating that at no time during the day did she leave the condominium in which she, the baby and an older son were located that particular day in question. In that same vein, [defendant] could not recall receiving any visits the day in question nor allowing anyone in the home who could have possibly harmed her child." (Italics added.)
Recall that despite defendant's claim of innocence, the jury convicted her of second-degree murder. The question we must resolve is whether she was convicted based on the natural and probable consequences doctrine of aiding and abetting liability or based on the application of the felony-murder rule. Her admissions to the probation officer are dispositive. Although she denies wrongdoing, she is "adamant" that no one else, other than her one-year-old son, were in the home that day. The natural and probable consequences doctrine presupposes that defendant aided and abetted another principal in the commission of a target crime and that the natural and probable consequence of the target crime aided and abetted was the commission of the offense at issue. Since defendant was home alone, admittedly no other person was present for whom she could have aided and abetted a target offense the natural and probable consequence of which was the murder.
And the felony-murder rule presupposes that defendant engaged in a qualifying felony that resulted in a death. The accusatory pleading in this case charged a single offense—the murder of David Duong. Prosecutors are not known for failing to charge a felony resulting in death. We are confident this is not a case in which the felony-murder rule was the theory of prosecution.
Defendant's statements to the probation officer, as recited in the probation report, are admissible. Her statements that she was alone the entire day with the victim and her other child are admissible as a party admission and puts to rest any notion that she assisted another in a different target offense. (Evid. Code, § 1220.) The probation report itself is admissible as a record by a public employee. (Evid. Code, § 1280.) And the probation officer is presumed reliable under the official duty presumption. (Evid. Code, § 664.) A probation report is part of the court's "own file." To ignore it is to ignore the obvious. The information we rely upon was admissible under the stated exceptions to the hearsay rule. As a panel of this court held in another context, there is a substantial basis for believing the hearsay information in the report is reliable and may be considered in determining eligibility for resentencing. (People v. Sledge, supra, 7 Cal.App.5th 1089, 1095.) Our analysis in Sledge, which concerned determining a defendant's eligibility for resentencing under Proposition 47, applies equally to the determination of a defendant's eligibility for resentencing under section 1170.95.
Accordingly, defendant was either the actual perpetrator or she was innocent. The jury found her to be guilty, and thus the actual perpetrator. She is not eligible for resentencing under section 1170.95. Our review of the record has not disclosed any other arguable issue.
DISPOSITION
The postjudgment order is affirmed.
IKOLA, J. WE CONCUR: ARONSON, ACTING P. J. THOMPSON, J.