P. v. Phan

Filed 11/16/20 P. v. Phan CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
CUONG PHAN,
Defendant and Appellant.
B301797
(Los Angeles County
Super. Ct. No. GA020922)
APPEAL from an order of the Superior Court of Los
Angeles County, Stephen A. Marcus, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee and Douglas L.
Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
_________________

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INTRODUCTION
Cuong Phan appeals from the superior court’s order
denying his petition under Penal Code section 1170.95,1 which
allows certain defendants convicted of murder under a felony
murder or natural and probable consequences theory to petition
the court to vacate their convictions and for resentencing. Phan
argues that his petition stated a prima facie case for relief under
the statute and that the superior court erred when it considered
hearsay evidence in denying his petition. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Phan of Second Degree Murder, and
This Court Affirms
On June 4, 1994 Frank Chen was having a party in his
parents’ backyard to celebrate his graduation from high school.
Phan and his friends, members of the Asian Boyz criminal street
gang, drove to the party, but were told they could not come in
because rival gang members were there. Phan and his fellow
gang members left to get weapons.
After obtaining an AK-47 rifle and a .380-caliber revolver,
the group drove back to the party in three separate cars. Phan
was one of the drivers. The group arrived as the party was
ending. Two members of the Asian Boyz gang opened fire on the
people who were still at the party, killing two and wounding
seven.
The jury found Phan guilty on two counts of second degree
murder as an aider and abettor. The jury also found true the
1 Undesignated statutory references are to the Penal Code.

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allegation a principal was armed with a firearm in the
commission of each offense, within the meaning of section 12022,
subdivision (a)(1). This court affirmed Phan’s conviction. (People
v. Ha (Sept. 29, 1999, B114255) [nonpub. opn.].)2
B. The Legislature Enacts Senate Bill No. 1437 and
Establishes the Section 1170.95 Petition Procedure
Senate Bill No. 1437, effective January 1, 2019, amended
“the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, 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); see
People v. Lewis (2020) 43 Cal.App.5th 1128, 1135, review granted
Mar. 18, 2020, S260598 (Lewis).)3 Senate Bill No. 1437 added
section 1170.95, which provides that 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
2 In 2010 we denied Phan’s petition for habeas corpus in
which he argued “the prosecutor used his peremptory challenges
in a discriminatory fashion to remove African-American jurors
from the jury panel.” (In re Phan (Dec. 13, 2010, B216199)
[nonpub. opn.].)
3 The Supreme Court in Lewis limited briefing 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)?

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to be resentenced on any remaining counts when all of the
following conditions apply: [¶] (1) A complaint, information, or
indictment was filed against the petitioner that allowed the
prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine. [¶] (2)
The petitioner was convicted of first degree or second degree
murder following a trial or accepted a plea offer in lieu of a trial
at which the petitioner could be convicted for first degree or
second degree murder. [¶] (3) The petitioner could not be
convicted of first or second degree murder because of changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1170.95,
subd. (a); see Lewis, at pp. 1135-1136.)
Senate Bill No. 1437 added section 189, subdivision (e),
which provides: “A participant in the perpetration or attempted
perpetration of a felony . . . in which a death occurs is liable for
murder only if one of the following is proven: [¶] (1) The person
was the actual killer. [¶] (2) The person was not the actual
killer, but, with the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual
killer in the commission of murder in the first degree. [¶] (3)
The person was a major participant in the underlying felony and
acted with reckless indifference to human life . . . .”
Section 1170.95 prescribes the process the court must
follow in ruling on a petition for resentencing. (People v. Verdugo
(2020) 44 Cal.App.5th 320, 327, review granted Mar. 18, 2020,
S260493 (Verdugo).) First, the petitioner submits a petition for
relief, which includes a declaration he or she is eligible for relief
and a request for counsel, if any. (§ 1170.95, subd. (b)(1);
Verdugo, at p. 327.)

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Second, before ordering briefing, the superior court
determines whether the petitioner has made a prima facie
showing he or she is eligible for resentencing. (§ 1170.95,
subd. (c); Verdugo, supra, 44 Cal.App.5th at p. 328.) In making
this determination, the court may consider the record of
conviction and readily available documents in the court file,
including the charging information and jury instructions.
(People v. Tarkington (2020) 49 Cal.App.5th 892, 908, review
granted Aug. 12, 2020, S263219; People v. Edwards (2020)
48 Cal.App.5th 666, 674, review granted July 8, 2020, S262481
(Edwards).) An unpublished court of appeal opinion is part of the
record of conviction. (Verdugo, at p. 333; Lewis, supra,
43 Cal.App.5th at p. 1138.)
The court may summarily deny a petition under section
1170.95 based on the court’s review of the record of conviction.
(Edwards, supra, 48 Cal.App.5th at p. 674; Verdugo, supra,
44 Cal.App.5th at p. 333; Lewis, supra, 43 Cal.App.5th at
p. 1138.) The court may deny a petition at this stage of the
proceedings if the record of conviction includes “information that
establishes the petitioner is ineligible for relief as a matter of law
because he or she was convicted on a ground that remains valid
notwithstanding [Senate Bill No.] 1437’s amendments to sections
188 and 189.” (Verdugo, at p. 330.) Alternatively, if information
“is missing from the petition and cannot be readily ascertained by
the court, the court may deny the petition without prejudice to
the filing of another petition and advise the petitioner that the
matter cannot be considered without the missing information.”
(§ 1170.95, subd. (b)(2); see Edwards, at p. 672.) If the petitioner
requested counsel, the superior court does not have a duty to
appoint counsel until the court makes the threshold

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determination that the petitioner “‘falls within the provisions’” of
the statute. (Lewis, at p. 1140; see Verdugo, at p. 332 [“The
structure and grammar of [section 1170.95, subdivision (c),]
indicate the Legislature intended to create a chronological
sequence: first, a prima facie showing, thereafter, appointment of
counsel for petitioner; then, briefing by the parties.”]; People v.
Cornelius (2020) 44 Cal.App.5th 54, 58 [superior court is not
statutorily required to appoint counsel if the petitioner “is
indisputably ineligible for relief”], review granted Mar. 18, 2020,
S260410; but see People v. Cooper (2020) 54 Cal.App.5th 106,
122-123 [disagreeing with Verdugo and concluding “a petitioner
is entitled to counsel upon the filing of a facially sufficient
petition for relief that requests counsel be appointed”], review
granted Nov. 10, 2020, S264684.)
Third, if the court determines after reviewing the record of
conviction the petitioner is not ineligible as a matter of law, the
court appoints counsel for the petitioner if requested, directs the
prosecutor to file a response within 60 days, and permits the
petitioner to file a reply within 30 days of receiving the
prosecutor’s response. (§ 1170.95, subd. (c); Verdugo, supra,
44 Cal.App.5th at p. 332.) If the petitioner makes the prima facie
showing he or she is entitled to relief, the superior court must
issue an order to show cause. (§ 1170.95, subd. (c).) Finally,
“[w]ithin 60 days after the order to show cause has issued, the
court shall hold a hearing” to determine whether to resentence
the petitioner. (§ 1170.95, subd. (d)(1); see Verdugo, at p. 327.)
The court should not issue an order to show cause or have a
hearing “unless the court first determines a prima facie showing
of entitlement to relief.” (Edwards, supra, 48 Cal.App.5th at
p. 673.)

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C. Phan Petitions for Resentencing Under Section
1170.95
On January 2, 2019 Phan, representing himself, filed a
form petition under section 1170.95, asking the superior court to
vacate his second degree murder convictions and to resentence
him. In his petition, Phan checked boxes stating that he “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” and that “I was convicted of 2nd degree murder under the
natural and probable consequences doctrine or under the 2nd
degree felony murder doctrine and I could not now be convicted of
murder because of changes to Penal Code § 188, effective January
1, 2019.” Phan also checked the box stating, “I request that this
court appoint counsel for me during this re-sentencing process.”
On January 18, 2019 the superior court appointed counsel
to represent Phan with “respect to the pending petition” and
ordered the prosecutor to “take appropriate steps to respond
and/or appear.” On March 7, 2019 the People filed an opposition
to the petition, arguing Senate Bill No. 1437 was
unconstitutional. The People subsequently filed a supplemental
response arguing Phan was ineligible for relief under section
1170.95 because he “was not convicted under the felony-murder
rule or under the natural and probable consequences doctrine.”
The People attached to their supplemental response this court’s
decision in People v. Ha, supra, B114255, as well as a portion of
the trial transcript showing that the People withdrew their
request for a jury instruction on natural and probable
consequences and that the court gave an instruction on direct
aiding and abetting. Phan filed a reply to the People’s opposition.

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On September 10, 2019 the superior court held a hearing
on the petition. The court stated it had “focused on the appellate
decision, as well as [the parties’] points and authorities, and . . .
concluded that this case qualifies for a summary denial, which
means that I don’t think it should go any further.” When counsel
for Phan objected, the court stated: “I did not, obviously, try this
case; although as luck would have it, I did a huge habeas . . . in
this case . . . not involving this defendant but involving Hum
Bang, who was the shooter. Needless to say, there [was] no
natural and probable consequences theory upon which the People
proceeded in this case. There is no felony murder theory upon
which the People proceeded in this case. That is borne out by the
fact that there were no jury instructions to that effect. Secondly,
the appellate decision clearly indicates that the defendant Phan
was convicted on an aiding and abetting theory.”
In its minute order, the court stated: “The People
proceeded only on an aiding and abetting murder theory
argument [against] defendant Phan. There is no indication in the
trial record that felony murder or natural and probable
consequence was used by the prosecution as a theory to convict
defendant Phan of murder. There were no jury instructions given
by the judge as to felony murder or natural and probable
consequences. The appellate court in . . . reviewing the case
made it absolutely clear it was sustaining the conviction
against . . . Phan because the prosecution had met its burden of
proof that defendant Phan was guilty of murder based on aider
and abettor liability. In finding there was sufficient evidence to
support Phan’s conviction based on aider and abettor liability, the
court found that ‘the evidence demonstrates Phan acted with
knowledge[ ] of the criminal purpose of the perpetrator and with

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an intent or purpose of either committing, or of encouraging or
facilitating commission of the target offense.’ . . . Defendant
Phan is not eligible under the statutory provisions of Penal Code
section 1170.95 to any relief. Accordingly, his petition is
summarily denied without a sentencing hearing.” Phan timely
appealed.
DISCUSSION
Phan does not argue that the jury was instructed on or that
he was convicted under either a felony murder or natural and
probable consequences theory. In fact, the record shows that the
court and counsel discussed the jury instructions and that,
although the prosecutor originally requested the CALJIC
instruction on the natural and probable consequences doctrine,
CALJIC No. 3.02, the prosecutor withdrew that request and the
court did not give the instruction. (See People v. Hardy (2018)
5 Cal.5th 56, 93 [CALJIC No. 3.02 instructs on the natural and
probable consequences doctrine].) The court gave only the
CALJIC instruction on direct aiding and abetting, CALJIC
No. 3.01, which stated that a “person aids and abets the
commission of a crime when he or she with knowledge of the
unlawful purpose of the perpetrator” and “with the intent or
purpose of committing, encouraging, or facilitating the
commission of the crime, by act or advice aids, promotes,
encourages, or instigates the commission of the crime.” (See
People v. Pearson (2012) 53 Cal.4th 306, 321 [CALJIC No. 3.01
instructs that “an aider and abettor must know of the direct
perpetrator’s unlawful purpose and must act with the intent of
furthering the perpetrator’s crime”].)

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Phan’s only argument is procedural. Phan contends the
superior court “improperly conflated the discrete procedural
provisions of subdivisions (c) and (d)” of section 1170.95 and
“cherry-picked” evidence to summarily deny the petition.
According to Phan, “section 1170.95 does not permit receipt of
evidence for the prima facie showing determination set forth in
subdivision (c), but rather limits evidentiary consideration to
proceedings under subdivision (d), which authorizes courts to
consider records of conviction and such new or addition[al]
evidence as may be relevant to appellant’s resentencing for his
murder conviction.”
In Verdugo, however, we rejected this argument and held
that a “court of appeal opinion, whether or not published, is part
of the appellant’s record of conviction” and that the superior court
may consider it “in determining whether [the defendant] had
made a prima facie showing of eligibility for relief under section
1170.95 or whether he was ineligible for relief as a matter of
law.” (Verdugo, supra, 44 Cal.App.5th at p. 333; accord, People v.
Galvan (2020) 52 Cal.App.5th 1134, 1140, review granted Oct. 14,
2020, S264284; People v. Gomez (2020) 52 Cal.App.5th 1, 14,
review granted Oct. 14, 2020, S264033; People v. Law (2020)
48 Cal.App.5th 811, 820-821, review granted July 8, 2020,
S262490; Lewis, supra, 43 Cal.App.5th at pp. 1134, 1138.) Thus,
contrary to Phan’s contention, the superior court properly
considered our prior opinion in ruling Phan failed to make a
prima facie showing under section 1170.95, subdivision (c).
Phan argues “the resentencing court improperly considered
hearsay contained in the prior appellate opinion.” Phan,
however, forfeited this argument by not making a hearsay
objection in the superior court. (See People v. Perez (2020)

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9 Cal.5th 1, 7 [“Ordinarily, ‘the failure to object to the admission
of . . . hearsay at trial forfeits an appellate claim that such
evidence was improperly admitted’”]; People v. Stevens (2015)
62 Cal.4th 325, 333 [“the failure to object to the admission of . . .
hearsay at trial forfeits an appellate claim that such evidence
was improperly admitted”]; People v. Panah (2005) 35 Cal.4th
395, 476 [“With respect to the hearsay claim, ‘“[i]t is settled law
that incompetent testimony, such as hearsay or conclusion, if
received without objection takes on the attributes of competent
proof when considered upon the question of sufficiency of the
evidence to support a finding.”’”].)
Even if preserved, however, Phan’s hearsay argument is
meritless. Generally, “the appellate opinion itself, representing
the action of a court, clearly comes within the exception to the
hearsay rule for official records.” (People v. Woodell (1998)
17 Cal.4th 448, 458; accord, People v. Brimmer (2014)
230 Cal.App.4th 782, 800; see Lockley v. Law Office of Cantrell,
Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885
[“[u]nder section 1280 of the Evidence Code, appellate opinions do
come within the exception to the hearsay rule for official records,”
although “while an official record of an appellate opinion can be
admitted to prove the truth of the facts asserted, the most it may
prove is that the appellate opinion was delivered and that the
court made orders, factual findings, judgments and conclusions of
law”]; cf. People v. Guilford (2014) 228 Cal.App.4th 651, 660 [“To
the extent our prior appellate opinion may be viewed as ‘hearsay,’
it is still admissible in the context of a Proposition 36 eligibility
review. Reliable hearsay is deemed sufficient for purposes of
revoking probation or parole, somewhat analogous proceedings
where a defendant’s due process rights are less than those at the

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initial criminal proceeding.”].) The superior court here properly
used the appellate opinion in Phan’s direct appeal to determine
the jury convicted Phan of murder as a direct aider and abettor,
not under a felony murder or natural and probable consequences
theory. (See Woodell, at p. 460 [“The appellate court’s discussion
of the evidence is relevant and admissible, not to show exactly
what the defendant did, but to show whether the trial court
found, at least impliedly, that the conviction was based on
personal use rather than vicarious liability.”]; In re Richardson
(2011) 196 Cal.App.4th 647, 666-667 [superior court was entitled
to rely on a prior appellate court opinion to show the defendant’s
prior conviction “was based on his inflicting serious bodily injury
to nonaccomplices”].)
And the superior court read our opinion correctly. Phan
argued in his direct appeal that he could not “be found guilty of
aiding and abetting merely because he associated with the actual
perpetrators of the crime.” (People v. Ha, supra, B114255.) In
affirming Phan’s conviction, we stated: “The evidence
demonstrates Phan acted ‘with knowledge of the criminal
purpose of the perpetrator and with an intent or purpose of either
committing, or of encouraging or facilitating commission of, the
target offense.’ [Citation.] Indeed, the evidence in the instant
case goes far beyond mere gang membership: Phan and his
co-defendants were all members of the Asian Boyz, which had
recently been humiliated by the killing of its member . . . . The
Asian Boyz had a motive to retaliate. On the night of the
shooting, the group spent the better part of an evening, after
being informed rival gang members were at a party, searching for
weapons. They had to travel to three different locations to finally
procure a suitable weapon. They returned to the party, and even

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after being told the party was over, several of them disembarked
from the three vehicles they had taken to the party, ran into the
backyard, and immediately began shooting. Once they had shot
several people, they ran back to their cars and rapidly departed
the scene. This conduct, taken in conjunction with all of the
other evidence . . . , establishes Phan acted with the necessary
criminal knowledge and intent to be found guilty on an aider and
abettor theory.” (People v. Ha, supra, B114255.)
As the court stated in Lewis, supra, 43 Cal.App.5th 1128, in
words equally applicable to this case: “Stated differently, we held
that the record established that the jury found defendant guilty
beyond a reasonable doubt on the theory that he directly aided
and abetted the perpetrator of the murder. The issue whether
defendant acted as a direct aider and abettor has thus been
litigated and finally decided against defendant. . . . This finding
directly refutes defendant’s conclusory and unsupported
statement in his petition that he did not directly aid and abet the
killer, and therefore justifies the summary denial of his petition
based on the authorities and policy discussed above.” (Id. at
pp. 1138-1139.) Therefore, the superior court did not err in
concluding that Phan did not make a prima facie showing for
relief under section 1170.95. (See Verdugo, supra,
44 Cal.App.5th at p. 333.)
Nor did the superior court improperly consider facts in a
habeas petition filed by one of Phan’s co-defendants. At the
hearing on Phan’s petition for resentencing, the superior court
judge hearing Phan’s petition mentioned the co-defendant’s
habeas petition essentially to let the parties know he had some
familiarity with the case despite the fact he was not the

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sentencing judge in Phan’s trial.4 Nothing in the record suggests
the superior court relied on the co-defendant’s habeas petition in
summarily denying Phan’s petition.
DISPOSITION
The order denying Phan’s petition for resentencing under
section 1170.95 is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J. DILLON, J.
4 The sentencing judge was not available. (See People v.
Santos (2020) 53 Cal.App.5th 467, 473-474 [section 1170.95
“directs the presiding judge of the sentencing court to designate
the judge who sentenced petitioner to rule on the filed petition,
unless that judge is not available”].)
 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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