P. v. Huynh

Filed 5/8/20 P. v. Huynh CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
PHILONG HUYNH,
Defendant and Appellant.
D075588
(Super. Ct. No. SCD222832)
APPEAL from an order of the Superior Court of San Diego County, Robert F.
O'Neill, Judge. Affirmed.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James
Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

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In 2011, a jury found defendant Philong Huynh guilty of (among other things) first
degree felony-murder (Pen. Code, § 189)1 and found true the special circumstance
allegations that he committed the murder during the commission of sodomy (§ 190.2,
subd. (a)(17)(D)) and oral copulation (§ 190.2, subd. (a)(17)(F)). We affirmed the
convictions in 2012, concluding sufficient evidence supported the finding that the victim
died by criminal agency (as opposed to a preexisting medical condition), and that the jury
was properly instructed regarding causation principles in the context of this "single-
perpetrator felony-murder case." (People v. Huynh (2012) 212 Cal.App.4th 285, 309
(Huynh).)2
In January 2019, Huynh filed a petition for resentencing under newly enacted
Senate Bill No. 1437 (2017–2018 Reg. Sess.), which narrowed the circumstances under
which an individual can be convicted of felony-murder (§ 189), and provides for
resentencing of individuals whose convictions would not meet the new standard
(§ 1170.95). The trial court, relying on our prior opinion, found Huynh ineligible for
resentencing because his conviction satisfied the new felony-murder standard—that is,
Huynh "was the actual killer" (§ 189, subd. (e)(1))—and summarily denied the petition
without appointing counsel or holding a hearing.3
1 Further undesignated statutory references are to the Penal Code.
2 We partially published our opinion. We grant the Attorney General's unopposed
request to take judicial notice of the unpublished portions of that opinion.
3 After the trial court denied Huynh's resentencing petition, Huynh filed in our court
a petition for writ of habeas corpus based largely on the assertions he made in his

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Huynh contends the trial court violated the prima facie review procedure set forth
in section 1170.95, subdivision (c) by summarily denying his petition without first
appointing counsel or holding an evidentiary hearing. The Courts of Appeal that have
thus far considered similar contentions have rejected Huynh's proffered reading of this
subdivision, and the issue is pending in the California Supreme Court. (See People v.
Lewis (2020) 43 Cal.App.5th 1128, review granted March 18, 2020, S260598 (Lewis);4
People v. Verdugo (2020) 44 Cal.App.5th 320, review granted March 18, 2020, S260493
(Verdugo); People v. Torres (2020) 46 Cal.App.5th 1168 (Torres).)
Pending further guidance from our high court, we likewise reject Huynh's
proffered reading of section 1170.95, subdivision (c), and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Huynh's Convictions
We base the following factual summary of Huynh's underlying convictions on our
prior opinion. (Huynh, supra, 212 Cal.App.4th at pp. 291-300.)
Prosecution Evidence
In January 2008, 23-year-old Dane Williams went missing after an evening of
drinking with friends and coworkers. A few days later, his body was found in an alley,
resentencing petition, which he attached to the writ petition. We issued an order stating
we would consider the writ petition at the same time as this appeal.
4 We may cite a published opinion for its persuasive value while review is pending.
(Cal. Rules of Court, rule 8.1115(e)(1).)

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rolled up in a rug. Although he was by all accounts heterosexual, someone else's semen
was on his shirt, and his underwear were missing.
An autopsy conducted by forensic pathologist Dr. Mena determined Williams's
lungs were congested and weighed twice their normal weight. Although this condition
was consistent with death by a cardiac event or asphyxiation, Dr. Mena found no
evidence either had occurred. The autopsy also disclosed a 60 percent blockage of a
main coronary artery, but Dr. Mena concluded this narrowing alone did not cause
Williams's death. Finally, toxicology tests showed Williams had a blood alcohol level
between 0.17 and 0.21 percent, and a therapeutic level (0.36mg/L) of diazepam, a
benzodiazepine drug. Dr. Mena opined that although these levels were insufficient to
have caused Williams's death, they played a role in it. Unable to determine the cause or
manner of Williams's death, Dr. Mena classified both as "undetermined."
Williams's death remained unresolved for 18 months. Then, while investigating a
possible drugging and sexual assault by Huynh of a young heterosexual male (Jeremiah
R.), investigators obtained a DNA sample from Huynh that matched the profile of the
semen found on Williams's shirt. Further investigation uncovered additional physical
evidence connecting Huynh to Williams.
Investigators found evidence that Huynh liked to have sex with young
heterosexual males, and would surreptitiously slip pills into their drinks and have sex
with them after they passed out. Searches of Huynh's apartment and car yielded
numerous prescriptions for benzodiazepines, and records indicated Huynh had attended a

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college for osteopathic medicine where he took a course in pharmacology that instructed
on the effects of benzodiazepines.
In light of this new evidence, Dr. Mena testified that if he had known that Huynh
had given Williams benzodiazepines and sexually assaulted him, he would have changed
the manner of death to homicide and the cause of death to "sudden death during or
around the time of sexual assault while intoxicated." Similarly, an
anesthesiologist/cardiovascular specialist testified that Williams's cause of death was an
"external obstruction to breathing," which contributed to the excessive weight of
Williams's lungs. The doctor opined the combination of alcohol and benzodiazepines
contributed to Williams's death by hampering any effective opposition against the
external obstruction to his breathing.
Defense Evidence
The chief medical examiner for San Diego County and a deputy medical examiner
both testified there was consensus in their office that the cause and manner of Williams's
death were "undetermined." However, in answering a hypothetical question posed by the
prosecutor, the chief medical examiner opined that if it were established that Huynh had
given Williams benzodiazepines and sexually assaulted him, he would agree that the
manner of death should be changed to homicide and the cause of death should be
changed to sudden death during sexual assault.
The defense also presented testimony from the chief medical examiner for Utah,
who disagreed with the prosecution expert about the significance of the postmortem
condition of Williams's lungs. The expert opined that the blockage in Williams's

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coronary artery was unusual for someone his age and possibly contributed to his death.
Thus, the expert agreed with the initial assessment that Williams's manner and cause of
death were properly classified as "undetermined."
Jury Verdicts and Sentencing
The jury found Huynh guilty of first degree murder (§ 187), and found true the
special circumstance allegations that he committed the murder during the commission of
sodomy and oral copulation (§ 190.2, subd. (a)(17)(D), (F).) The jury also found Huynh
guilty of two counts of sodomy of an intoxicated person (§ 286, subd. (i)) and two counts
of oral copulation of an intoxicated person (former § 288a, subd. (i) [now § 287, subd.
(i)]), one count of each offense as to both Williams and Jeremiah.
The trial court sentenced Huynh to life without the possibility of parole, plus 10
years.
Huynh's Prior Appeal
Huynh appealed his convictions, asserting 12 claims of error. As relevant here, he
claimed (1) there was insufficient evidence that Williams died by criminal agency (as
opposed to from a preexisting medical condition); (2) the jury instructions on first degree
felony-murder did not properly address causation; and (3) the court erred by refusing to
instruct the jury on second degree murder as a lesser included offense. We rejected these
claims and affirmed.
As to the sufficiency of the showing of criminal agency, we observed "it is up to
the jury—not an appellate court—to determine what weight to give to the" extensive and
conflicting expert witness testimony. (Huynh, supra, 212 Cal.App.4th at p. 301.) We

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further observed that Huynh's arguments ignored the defense experts' concessions on
cross-examination. (Id. at p. 302.)
Regarding the jury instructions on causation, we explained that traditional
causation principles did not apply to this single-perpetrator felony-murder case:
"[O]ur Supreme Court has made it clear that in a case such as this
one, which involves a single perpetrator, application of the felony-
murder rule lies outside the context of causation principles, such as
proximate causation, natural and probable consequences and
foreseeability. In other words, the felony-murder rule imposes a
type of strict liability on the perpetrator acting on his or her own.
'[F]irst degree felony murder encompasses a far wider range of
individual culpability than deliberate and premeditated murder. It
includes not only the latter, but also a variety of unintended
homicides resulting from reckless behavior, or ordinary negligence,
or pure accident; it embraces both calculated conduct and acts
committed in panic or rage, or under the dominion of mental illness,
drugs, or alcohol; and it condemns alike consequences that are
highly probable, conceivably possible, or wholly unforeseeable.'
[Citation.] 'Once a person has embarked upon a course of conduct
for one of the enumerated felonious purposes, he comes directly
within a clear legislative warning—if a death results from his
commission of that felony it will be first degree murder, regardless
of the circumstances.' [Citation.] Accordingly, the felony-murder
rule generally does not require proof of a strict causal relationship
between the underlying felony and the killing if there is one actor,
and the felony and the killing are part of one continuous
transaction." (Huynh, supra, 212 Cal.App.4th at pp. 309-310.)
In light of these principles, we concluded the trial court had properly instructed the
jury regarding causation. (Huynh, supra, 212 Cal.App.4th at pp. 310-311.)
Finally, we rejected Huynh's contention that the trial court should also have
instructed the jury on second degree murder. In doing so, we explained that the implied-
malice theory of second degree murder, which arises when a defendant engages in
inherently dangerous conduct, was inapplicable to Huynh because "sodomy of an

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intoxicated person and/or oral copulation of an intoxicated person are not inherently
dangerous to life and/or do not pose a significant prospect of violence." (Huynh, supra,
212 Cal.App.4th at pp. 314-315.)
The California Supreme Court denied Huynh's petition for review.
Huynh's Petition for Resentencing Under Senate Bill No. 1437
Effective January 1, 2019, the Legislature enacted Senate Bill No. 1437, which
amended section 189 to limit the applicability of the felony-murder rule to a person who:
(1) "was the actual killer"; (2) though not the actual killer, assisted the commission of
first degree murder "with intent to kill"; or (3) was "a major participant in the underlying
felony and acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 3.)
The bill also added section 1170.95, which allows a person convicted under the former
felony-murder standard to seek resentencing if he or she could not have been convicted
under the new standard. (Stats. 2018, ch. 1015, § 4.)
About three weeks after Senate Bill No. 1437 took effect, Huynh filed a petition
for resentencing and requested that the court appoint him counsel. He argued he was
eligible for resentencing under the new felony-murder standard because "the evidence . . .
shows that [he] did not engage in any killing, did not have any intent to kill, and did not
act with reckless indifference to life . . . ." Specifically, Huynh argued "that the state's
theory of asphyxia is untrue, wholly speculative and unsupported by sound scientific
evidence, that their proffer of proof does not rise beyond reasonable doubt as to any
killing, which is the essential element of proof of murder; and . . . that the evidence on

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record and newly presented evidence [in his petition] point to internal cause of natural
death due to heart disease and not any external factor or killing . . . ."
Huynh supported his petition with a 10-page declaration in which he extensively
reargued the conflicting medical evidence introduced at trial regarding Williams's cause
of death. He supported his argument with citations to various case law and medical
publications. He did not, however, cite any truly new evidence or authority pertaining
directly to the facts of his case.5
The trial court summarily denied Huynh's motion without first appointing him
counsel or holding an evidentiary hearing. Citing our prior opinion, the trial found
Huynh "was the actual killer" (§ 189, subd. (e)(1)) and, thus, was ineligible for
resentencing even under the new felony-murder standard:
"In this case, the underlying felonies resulting in the death of the
victim were committed by a sole perpetrator—[Huynh]. Thus,
[Huynh] was 'the actual killer.' [Huynh]'s argument that the victim
died a natural death as a result of preexisting medical conditions, and
not by any 'killing' by [Huynh], are unavailing. [Huynh] is
attempting to relitigate here what has already been litigated at trial
and on appeal regarding whether the victim's death was an accident.
The evidence supports a finding that it was not an accident.
[Citation.] [¶] Accordingly, the petition is denied. Because the
petition is denied, the request for appointment of counsel is also
denied."
Huynh appeals.
5 By a separate order concurrently filed in case number D076699, we have denied
Huynh's petition for habeas corpus, which he based largely on the assertions in his
resentencing petition.

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DISCUSSION
Huynh contends the trial court erred by summarily denying his resentencing
petition at the prima facie review stage without first holding a hearing or appointing him
counsel. As he reads section 1170.95, subdivision (c), the trial court was confined at this
stage to conducting "a purely 'facial' review" of "the factual assertions in the petition,"
which the trial court was required to accept as true. Thus, he contends that because he
alleged facts facially establishing his eligibility, the trial court erred by looking behind
those facts—to our prior opinion—to determine Huynh was, in fact, ineligible. We
disagree.
I. Senate Bill No. 1437
To protect the "bedrock principle of the law and of equity that a person should be
punished for his or her actions according to his or her own level of individual culpability"
(Stats. 2018, ch. 1015, § 1, subd. (d)), the Legislature enacted Senate Bill No. 1437 to
narrow the scope of liability under the felony-murder rule,6 and to provide a mechanism
by which individuals convicted under the old standard could petition for resentencing if
they could not be convicted under the new, narrower standard.
6 Senate Bill No. 1437 also narrowed the scope of liability under the natural and
probable consequences doctrine, which "rendered a defendant liable for murder if he or
she aided and abetted the commission of a criminal act (a target offense), and a principal
in the target offense committed murder (a nontarget offense) that, even if unintended, was
a natural and probable consequence of the target offense." (People v. Lamoureux (2019)
42 Cal.App.5th 241, 248 (Lamoureux), italics added.) However, we need not discuss this
doctrine because, as Huynh acknowledges in his appellate briefing, he "was prosecuted
exclusively on the felony murder theory." (See Huynh, supra, 212 Cal.App.4th at p. 312
["the prosecution's case was tried strictly on a first degree felony-murder theory"].)

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A. Narrowing of the Felony-Murder Rule
"Under the felony-murder rule as it existed prior to Senate Bill [No.] 1437, a
defendant who intended to commit a specified felony could be convicted of murder for a
killing during the felony . . . without further examination of his or her mental state."
(Lamoureux, supra, 42 Cal.App.5th at pp. 247-248; see § 189, subd. (a) [specifying
felonies, including sodomy (§ 286) and oral copulation (former § 288a [now § 287])].)
" 'The purpose of the felony-murder rule [was] to deter those who commit[ted] the
enumerated felonies from killing by holding them strictly responsible for any killing
committed by a cofelon, whether intentional, negligent, or accidental, during the
perpetration or attempted perpetration of the felony.' " (Lamoureux, at p. 248.)
Senate Bill No. 1437 narrowed the scope of the felony-murder rule by adding
subdivision (e) to section 189, which provides that a participant in a specified felony is
now liable for murder for a death during the commission of the offense 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 . . . ." (Stats.
2018, ch. 1015, § 3.)7
7 In addition, section 189, subdivision (e) "does not apply to a defendant when the
victim is a peace officer who was killed while in the course of the peace officer's duties,

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Senate Bill No. 1437 did not narrow the list of qualifying felony predicates.
(Stats. 2018, ch. 1015, § 3.)
B. Resentencing Petitions
Senate Bill No. 1437 also established a resentencing mechanism by adding section
1170.95 to the Penal Code. (Stats. 2018, ch. 1015, § 4.)
Subdivision (a) of section 1170.95 specifies the resentencing eligibility criteria,
which generally require that (1) the charging document must have asserted a felony-
murder theory; (2) the petitioner must have been convicted of first or second degree
murder; and (3) "[t]he petitioner could not be convicted of first or second degree murder
because of changes to [s]ection . . . 189 made effective January 1, 2019" by Senate Bill
No. 1437.
Subdivision (b) of section 1170.95 specifies the information the petition must
contain, which includes (1) a declaration by the petitioner that he or she meets the
eligibility criteria set forth in subdivision (a); (2) the superior court case number and year
of conviction; and (3) "[w]hether the petitioner requests the appointment of counsel."
Subdivision (c) of section 1170.95 specifies the prima facie review process the
trial court must employ. We quote it here in full because it is central to the issues in this
appeal:
"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
where the defendant knew or reasonably should have known that the victim was a peace
officer engaged in the performance of the peace officer's duties." (§ 189, subd. (f).)

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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. These deadlines shall
be extended for good cause. 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."
Subdivision (d) of section 1170.95 specifies the manner in which the trial court
shall conduct the order-to-show-cause hearing (unless the parties waive a hearing and
stipulate that the petitioner is entitled to be resentenced). (§ 1170.95, subd. (d)(1)-(2).) If
the parties do not waive the hearing, the prosecution bears the burden of proving beyond
a reasonable doubt that the petitioner is ineligible for resentencing. (§ 1170.95, subd.
(d)(3).) The parties "may rely on the record of conviction or offer new or additional
evidence." (Ibid., italics added)
Finally, if the petitioner is found eligible for relief, the murder conviction must be
vacated and the petitioner resentenced "on any remaining counts in the same manner as if
the petitioner had not been [sic] previously been sentenced, provided that the new
sentence, if any, is not greater than the initial sentence." (§ 1170.95, subd. (d)(1); see
Lamoureux, supra, 42 Cal.App.5th at p. 249.)
II. Trial Courts May Consider the Record of Conviction During the Prima Facie Review
Huynh maintains the trial court was confined at the prima facie review stage to
conducting a purely facial review of the factual assertions in the petition, which the court
was required to accept as true. Thus, he contends the court erred by looking behind those
allegations—namely, to our prior opinion—to determine Huynh was, in fact, ineligible.
We disagree.

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The court in Lewis, supra, 43 Cal.App.5th 1128, rev.gr., was the first to consider
and reject a substantially similar argument. (Id. at p. 1137 ["Defendant contends the
court could look no further than his petition"].) In doing so, the court observed there are
several "analogous situations [in which] trial courts are permitted to consider their own
files and the record of conviction in evaluating a petitioner's prima facie showing of
eligibility for relief." (Ibid.) These include petitions to reclassify a conviction under the
Safe Neighborhoods and Schools Act (Proposition 47), petitions for resentencing under
the Three Strikes Reform Act of 2012 (Proposition 36), and petitions for writs of habeas
corpus. (Lewis, at pp. 1137-1138.) Huynh acknowledges that Proposition 47 and habeas
proceedings are analogous.
The Lewis court explained why applying this approach to section 1170.95,
subdivision (c) would be "sound policy":
" 'It would be a gross misuse of judicial resources to require the
issuance of an order to show cause or even appointment of counsel
based solely on the allegations of the petition, which frequently are
erroneous, when even a cursory review of the court file would show
as a matter of law that the petitioner is not eligible for relief. For
example, if the petition contains sufficient summary allegations that
would entitle the petitioner to relief, but a review of the court file
shows the petitioner was convicted of murder without instruction or
argument based on the felony murder rule or [the natural and
probable consequences doctrine], . . . it would be entirely
appropriate to summarily deny the petition based on petitioner's
failure to establish even a prima facie basis of eligibility for
resentencing.' " (Lewis, supra, 43 Cal.App.5th at p. 1138, rev.gr.,
quoting Couzens et al., Sentencing Cal. Crimes (The Rutter Group
2019) ¶ 23:51(H)(1), pp. 23-150 to 23-151.)
Applying these principles, the Lewis court concluded the trial court "could, and
properly did, consider the record of defendant's conviction"—including the appellate

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court's prior opinion in the petitioner's direct appeal—when conducting its prima facie
eligibility review. (Lewis, supra, 43 Cal.App.5th at p. 1137, rev.gr.)
After Lewis, the courts in Verdugo, supra, 44 Cal.App.5th 320, rev.gr., and Torres,
supra, 46 Cal.App.5th 1168, similarly concluded that trial courts may look beyond the
face of the petition to determine whether the petitioner has stated a prima facie case for
eligibility. (Verdugo, at p. 329 ["documents in the court file or otherwise part of the
record of conviction that are readily ascertainable . . . should . . . be available to the court
in connection with the first prima facie determination required by subdivision (c)"]; id. at
p. 333 ["A court of appeal opinion, whether or not published, is part of the appellant's
record of conviction. [Citations.] Accordingly, it was proper for the superior court to
consider [the appellate] court's [prior] opinion . . . ."]; Torres, at p. 1178 ["the trial court
is permitted to review information that is readily ascertained"].)
We find these courts' reasoning persuasive and likewise hold that trial courts may
look beyond the face of a petition when determining whether a petitioner has stated a
prima facie case of eligibility for resentencing under section 1170.95.
III. Trial Courts Need Not Appoint Counsel Until After the Prima Facie Review
Huynh also reads section 1170.95, subdivision (c) as entitling him to appointed
counsel before the court makes its prima facie determination. Again, every court that has
considered the issue has rejected Huynh's proffered reading.
The Lewis court reasoned that because section 1170.95, as a whole, is laid out
chronologically (see part I, ante), so too should subdivision (c) be read chronologically.
(Lewis, supra, 43 Cal.App.5th at p. 1140, rev.gr.) Reading the subdivision in such a

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manner, the Lewis court concluded the right to counsel does not arise until after the court
has made its prima facie eligibility determination:
"Given the overall structure of the statute, we construe the
requirement to appoint counsel as arising in accordance with the
sequence of actions described in section 1170.95 subdivision (c);
that is, after the court determines that the petitioner has made a
prima facie showing that petitioner 'falls within the provisions' of the
statute, and before the submission of written briefs and the court's
determination whether petitioner has made 'a prima facie showing
that he or she is entitled to relief.' " (Lewis, supra, 43 Cal.App.5th at
p. 1140, rev.gr.)
The Verdugo court reached the same conclusion on similar reasoning. (Verdugo,
supra, 44 Cal.App.5th at p. 332, rev.gr. ["The structure and grammar of this subdivision
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."];
see Torres, supra, 46 Cal.App.5th at p. 1173 ["We disagree with [the appellant]'s broad
assertion that a trial court may not summarily deny a petition on the basis of the record of
conviction prior to appointment of counsel and briefing . . . ."]; People v. Cornelius
(2020) 44 Cal.App.5th 54, 58 [succinctly holding that a petitioner is not entitled to
appointed counsel if the petitioner "is indisputably ineligible for relief"], review granted,
March 18, 2020, No. S260410.)
We agree with these courts' reasoning and likewise hold that section 1170.95,
subdivision (c) does not require the trial court to appoint counsel for the petitioner until
after the court has made a prima facie finding of eligibility for resentencing.
Because we conclude the trial court properly determined Huynh had not stated a
prima facie case of eligibility for resentencing (see part IV, post), the denial of counsel at

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this stage did not, as Huynh suggests, violate his constitutional rights to the assistance of
counsel or due process. To the contrary, even the authorities on which Huynh relies most
heavily recognize the right to counsel in analogous contexts does not arise until after the
petitioner has made a prima facie showing. (See People v. Rouse (2016) 245 Cal.App.4th
292, 299 ["Our analysis does not conflict with [cases that] . . . concern only the initial
eligibility stage of a petition under [Proposition 47], not the resentencing stage . . . . [¶]
This case presents a separate issue. Defendant passed the eligibility stage."]; People v.
Fryhaat (2019) 35 Cal.App.5th 969, 983 ["In light of the fact writs of habeas corpus and
writs of coram nobis . . . require court-appointed counsel for an indigent petitioner or
moving party who has established a prima facie case for entitlement to relief, . . .
interpreting section 1473.7 [regarding withdrawal of a guilty plea based on adverse
immigration consequences] to also provide for court-appointed counsel where an indigent
moving party has adequately set forth factual allegations stating a prima facie case for
entitlement to relief would best effectuate the legislative intent in enacting section
1473.7."], italics added, fn. omitted.)
Similarly, Huynh acknowledges in his briefing that a due process-based right to
counsel arises "on appeal or in a collateral writ proceeding after an order to show cause
has been issued"; that is, after the petitioner has made a prima facie showing.
Finally, because the trial court complied with the procedures set forth in section
1170.95, subdivision (c), the court did not, as Huynh contends, deprive him of procedural
due process.

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IV. The Trial Court Properly Determined Huynh Was Ineligible
Having determined the trial court complied with section 1170.95's procedure for
preliminarily determining Huynh's eligibility for resentencing, we must now determine
whether the trial court properly found the record conclusively established Huynh was
ineligible. We conclude that it did.
To make a prima facie showing of eligibility for resentencing under Senate Bill
No. 1437, Huynh had to establish (among other things) that he "could not be convicted of
first or second degree murder because of changes to [s]ection . . . 189 made effective
January 1, 2019." (§ 1170.95, subd. (a)(3).) The changes to section 189 do not aid
Huynh because they still allow conviction on a felony-murder theory if the petitioner
committed a specified felony and "was the actual killer." (§ 189, subd. (e)(1).) The
record conclusively establishes these prerequisites are met.
First, the jury found Huynh guilty of committing a murder during the commission
of sodomy and oral copulation. Even after Senate Bill No. 1437, section 189 still
specifies sodomy and oral copulation as qualifying predicates for the felony-murder rule.
(§ 189, subd. (a); see Stats. 2018, ch. 1015, § 3.)
Second, the record conclusively establishes Huynh "was the actual killer." (§ 189,
subd. (e)(1).) In our prior opinion, we referred to this murder case as a "single-
perpetrator" case at least five times. (See Huynh, supra, 212 Cal.App.4th at p. 309 ["In
this single-perpetrator felony-murder case"]; ibid. ["in a case such as this one, which
involves a single perpetrator"]; id. at p. 310 [explaining that certain jury instructions were
inapplicable because they "are intended for felony-murder cases that do not involve a

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single perpetrator"]; id. at p. 311 ["Huynh is attempting to graft onto this single-
perpetrator felony-murder case . . . ."]; ibid. [Huynh's reference to bench notes for a
pattern jury instruction "is misleading as the instruction does not apply where death
results during the felony conduct undertaken by a single perpetrator."].) There is no
dispute that Huynh was that single perpetrator.
In attempting to escape this conclusion, Huynh does not argue that someone else
"was the actual killer." (§ 189, subd. (e)(1)). Instead, he suggests that, in light of Senate
Bill No. 1437's intent to impose punishment commensurate with the perpetrator's degree
of culpability, there was no killer because Huynh did not engage in the type of
reprehensible conduct required to give rise to murder liability. We disagree.
It is plain from the overall context of Senate Bill No. 1437, including its title—
"Accomplice liability for felony murder" (2018 Stats., ch. 1015)—the Legislature sought
to ensure proportionate punishment for accomplices. Thus, for participants in a specified
offense who are not "the actual killer," new section 189, subdivision (e) requires that they
harbor a more culpable mental state than was previously required. (§ 189, subd. (e)(2)
[an accomplice assisting the commission of first degree murder must act "with intent to
kill"]; id. subd. (e)(3) [an accomplice must be a "major participant in the underlying
felony and act[] with reckless indifference to human life"].) By contrast, for the
participant who "was the actual killer," subdivision (e) imposes no such heightened
degree of culpability—it requires only that "[t]he person was the actual killer." (§ 189,
subd. (e)(1).)

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We disagree with Huynh that the term "the actual killer" is "vague and
ambiguous" in the context of an "unintended, accidental death during [the]
commission . . . of a qualifying felony," which he contends occurred here. In the context
of the felony-murder rule, "the actual killer" is the person whose conduct during the
commission of a qualifying felony predicate caused the victim's death. That is, the term
distinguishes who among multiple accomplices "was the actual killer." (§ 189, subd.
(e)(1), italics added.)8 Nothing indicates the Legislature intended that the term impose a
new heightened causation or culpability standard for determining whether a perpetrator
was a killer, at all.9
In this vein, we find it significant that the Legislature, in amending section 189 to
add new subdivision (e), did not narrow the list of qualifying felony predicates. Thus, the
list still includes sodomy and oral copulation, which, as we observed in the context of the
facts of Huynh's original appeal, "are not inherently dangerous to life and/or do not pose
a significant prospect of violence." (Huynh, supra, 212 Cal.App.4th at pp. 314-315.)
Theoretically, this observation would have provided relief to an accomplice who was not
8 Thus, for example, the bank robber who shot and killed the teller "was the actual
killer," whereas the getaway driver who waited in the car was not.
9 Because of this distinction, the purported "new evidence" Huynh included with his
resentencing petition is irrelevant because it did not purport to identify someone else as
the actual killer; it purported to establish that Huynh's criminal agency did not cause
Williams's death, a proposition we rejected in our prior opinion. (See Huynh, supra, 212
Cal.App.4th at pp. 298-305.) The evidence might be relevant in a habeas proceeding if it
were truly new, but, as we explained in footnote 5 and its accompanying text, the
evidence was not, in fact, new.

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the actual killer by negating the newly required culpability level of either assisting the
commission of first degree murder "with intent to kill" (§ 189, subd. (e)(2)) or of being a
"major participant in the underlying felony and act[ing] with reckless indifference to
human life" (§ 189, subd. (e)(3)). However, it is of no moment here, because Huynh—as
the sole perpetrator—"was the actual killer." (§ 189, subd. (e)(1).)
Because the record conclusively establishes that Huynh "was the actual killer" of
Williams during the commission of a qualifying felony, Huynh could still be convicted of
murder under the felony-murder rule as modified by Senate Bill No. 1437. Accordingly,
the trial court properly found him ineligible at the prima facie review stage.
DISPOSITION
The order is affirmed.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.

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