1

Filed 10/29/20 P. v. Thao CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ENG THAO,

Defendant and Appellant.

C089584

(Super. Ct. No. 95F01142)

A jury convicted defendant Eng Thao of first degree murder and conspiracy to 

commit first degree murder for the 1994 murder of J.K., and this court affirmed the 

conviction in 1998. In February 2019 defendant filed a petition for resentencing under 

Penal Code section 1170.951 and requested the appointment of counsel. The trial court 

found that defendant was ineligible for relief and denied the petition without holding a 

hearing. Defendant appeals, arguing that the trial court improperly denied his section 

1

 Undesignated statutory references are to the Penal Code.
2

1170.95 petition because the court did not follow proper procedures when it conducted an 

independent inquiry without the benefit of briefs from the prosecution or defense counsel. 

For the reasons set forth below, we conclude the trial court did not err in denying 

defendant’s petition and affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

Following the 1994 killing of J.K., a jury found defendant guilty of first degree, 

premeditated murder (§ 187, subd. (a)), conspiracy to commit first degree murder 

(§ 182), and vehicle theft (Veh. Code, § 10851). The jury also found true special 

allegations of gang and firearm use enhancements (§§ 186.22, subd. (b), 12022.5, subd. 

(a)). The trial court sentenced defendant to state prison for 29 years to life. Following an 

appeal, this court affirmed the judgment. On September 8, 1998, we issued a remittitur, 

rendering the judgment final. 

On February 21, 2019, defendant filed a petition to vacate his murder conviction, 

citing section 1170.95. In the petition, defendant averred that a complaint or information 

had been filed against him that allowed the prosecution to proceed under a theory of 

felony murder or murder under the natural and probable consequences doctrine, and he 

had been convicted of murder under one of those theories; he did not specify in the 

petition which theory applied. He did not assert any new facts or evidence to support his 

petition. He requested that the court appoint him counsel in the proceeding on the 

petition. The district attorney filed an application for an extension of time to file a 

response to defendant’s petition, which was granted.

Before the district attorney filed a response to the petition, the trial court 

summarily denied the petition in a written order. The court found defendant had failed to 

make a prima facie showing that he was eligible for relief under section 1170.95 because

“[t]he jury verdict for the first degree murder contains a specific finding by the jury that

defendant [] is guilty of Penal Code § 187(a) ‘Murder in the First Degree, a willful,

deliberate and premeditated killing with express malice aforethought.’ ” The court 
3

observed: “There was no jury instruction given on the natural and probable 

consequences doctrine with regard to first degree murder. Nor was the jury instructed on 

any felony murder theory with regard to first degree murder; rather, the felony murder 

instruction was given only with regard to [the lesser included offense of] second degree 

murder . . . .” The court further observed, “The only theory of first degree murder upon 

which the jury was instructed was that of a ‘willful, deliberate and premeditated killing 

with express malice aforethought,’ and that instruction included specific language 

specifying that to find guilt of first degree murder the jury must find that defendant [] had

a ‘clear, deliberate intent . . . to kill.’ ” Having determined these facts from the record of

conviction, the trial court found “it is beyond a reasonable doubt that the jury

unanimously concluded that defendant [] had acted with specific intent to kill.” Thus, the 

court denied his petition, concluding defendant was not entitled to relief under section 

1170.95.

DISCUSSION

Defendant challenges the trial court’s summary denial of his petition. He contends 

the court erred in concluding, based on his record of conviction, that he did not make a 

prima facie showing without first appointing counsel or allowing briefing. The Attorney 

General contends that because the trial court concluded defendant was ineligible for relief 

as a matter of law, the court did not err in refusing to first appoint counsel or review 

briefing from the parties.

A. Senate Bill No. 1437

Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on 

January 1, 2019 (Bill 1437), revised the felony-murder rule in California “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).) The bill 

amended section 188, which defines malice, and section 189, which defines the degrees 
4

of murder to address felony-murder liability; it also added section 1170.95, which 

provides a procedure by which those convicted of murder can seek retroactive relief if the 

changes in the law would affect their previously sustained convictions. (Stats. 2018, 

ch. 1015, §§ 2-4; People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417; People v. 

Lewis (2020) 43 Cal.App.5th 1128, 1133, review granted Mar. 18, 2020, S260598 

(Lewis).)

Section 1170.95, subdivision (c) provides: “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. 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.” ( 1170.95, subd. (c).)

To make a prima facie showing, all three of the following conditions must 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. 

[And]

“(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).)

Section 189 was amended to include new subdivision (e), which provides: “(e) A 

participant in the perpetration or attempted perpetration of a felony [including rape, 
5

robbery, and burglary] 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, as described in subdivision (d) of Section 190.2.” 

(Stats. 2018, ch. 1015, § 3.)

Bill 1437 also “added a crucial limitation to section 188’s definition of malice for 

purposes of the crime of murder.” (People v. Verdugo (2020) 44 Cal.App.5th 320, 326, 

review granted Mar. 18, 2020, S260493 (Verdugo).) Under new section 188, subdivision 

(a)(3), “[m]alice shall not be imputed to a person based solely on his or her participation 

in a crime.” “As a result, the natural and probable consequences doctrine can no longer 

be used to support a murder conviction.” (Lewis, supra, 43 Cal.App.5th at p. 1135, rev. 

granted.)

B. Analysis

Defendant contends the trial court erred by summarily denying his petition without 

following procedures he claims newly enacted section 1170.95 mandates. In his view, 

section 1170.95 does not permit a court to preliminarily determine whether a defendant 

meets the statute’s prima facie criteria. Instead, upon receiving a section 1170.95 

petition, the trial court must first appoint counsel, if requested, and permit the parties to 

file responsive pleadings before determining whether the defendant has stated a prima 

facie case of eligibility. Interpreting the statute as defendant urges would render the first 

sentence of subdivision (c), which provides that “[t]he 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,” mere surplusage. (See Delaney v. Superior Court (1990) 
6

50 Cal.3d 785, 799 [“a construction that renders a word surplusage should be avoided”]; 

see also People v. Woodhead (1987) 43 Cal.3d 1002, 1010 [“It is a settled axiom of 

statutory construction that significance should be attributed to every word and phrase of a 

statute, and a construction making some words surplusage should be avoided”].)

When interpreting statutory language, moreover, we do not examine language in 

isolation but consider the context of the statutory framework as a whole. (Bruns v. ECommerce Exchange, Inc. (2011) 51 Cal.4th 717, 724.) “When the statutory framework 

is, overall, chronological, courts will construe the timing of particular acts in relation to 

other acts according to their location within the statute; that is, actions described in the 

statute occur in the order they appear in the text.” (Lewis, supra, 43 Cal.App.5th at 

pp. 1139-1140, rev. granted, citing KB Home Greater Los Angeles, Inc. v. Superior Court

(2014) 223 Cal.App.4th 1471, 1477 [statutory scheme’s sequential structure supports 

interpretation that acts required by the statute occur in the same sequence].) Applying 

this principle to section 1170.95, subdivision (c), the trial court must first determine 

whether a petitioner has made a prima facie showing that he or she “falls within the 

provisions” of the statute before appointing counsel, receiving briefs and then 

determining whether the petitioner has made “a prima facie showing that he or she is 

entitled to relief.” (§ 1170.95, subd. (c); Lewis, at p. 1140; see Verdugo, supra, 

44 Cal.App.5th at p. 330, rev. granted [“That the Legislature intended this three-step 

evaluation of a section 1170.95 petition is confirmed by the history of the legislation”].)

As other courts have recognized, “[a] prima facie showing of eligibility triggers 

the trial court’s obligation to issue an order to show cause and either hold a hearing, give 

the parties an opportunity to waive a hearing and stipulate to eligibility, or ‘[i]f there was 

a prior finding by a court or jury that the petitioner did not act with reckless indifference 

to human life or was not a major participant in the felony, the court shall vacate the 

petitioner’s conviction and resentence the petitioner.’ ” (People v. Ramirez (2019) 

41 Cal.App.5th 923, 929, citing § 1170.95, subds. (c), (d)(1) & (2).) That is, only after 
7

the trial court determines that a petitioner has made a sufficient prima facie showing that 

he or she “falls within the provisions” of the statute is briefing done and a hearing held 

where the prosecution “has the burden to prove beyond a reasonable doubt[] that [a] 

petitioner is ineligible for resentencing.” (Ramirez, at p. 929; § 1170.95, subd. (d)(3).) 

Where the court concludes that the petitioner does not fall within the provisions of the 

statute, no purpose would be served by proceeding to the next stages (appointment of 

counsel, response by the prosecutor, order to show cause), and summary denial of the 

petition without a hearing is proper. Indeed, “ ‘[i]t 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.’ ” (Lewis, supra, 43 Cal.App.5th at p. 1138, rev. 

granted; see People v. Cornelius (2020) 44 Cal.App.5th 54, 57-58, review granted 

Mar. 18, 2020, S260410 [affirming summary denial of petition based on verdict, trial 

transcript, and prior appeal].)

Our sister courts have further held that in determining whether a petitioner has met 

his burden of demonstrating prima facie eligibility, a trial court may look to documents 

that are part of the record of conviction or are otherwise in the court file. We agree. In 

Verdugo, supra, 44 Cal.App.5th at page 330, review granted, the Court of Appeal held 

that the trial court, in evaluating a petition under section 1170.95, should determine from 

all readily ascertainable information “whether there is a prima facie showing the 

petitioner falls within the provisions of the statute.” The court reasoned: “Although 

subdivision (c) does not define the process by which the court is to make this threshold 

determination, subdivisions (a) and (b) of section 1170.95 provide a clear indication of 

the Legislature’s intent. . . . [S]ubdivision (b)(2) directs the court in considering the 

facial sufficiency of the petition to access readily ascertainable information. The same 

material that may be evaluated under subdivision (b)(2)—that is, documents in the court 
8

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 determination 

required by subdivision (c).” (Verdugo, at p. 329.) The court further held that the 

superior court should examine not only “the complaint, information or indictment filed 

against the petitioner; the verdict form or factual basis documentation for a negotiated 

plea; and the abstract of judgment,” but also any “court of appeal opinion, whether or not 

published, [because it] is part of the [defendant’s] record of conviction.” (Id. at pp. 329-

330, 333.) In Lewis, the court looked to “analogous situations” in which trial courts are 

tasked with a preliminary evaluation of prima facie eligibility for relief and noted that 

trial courts in those settings “are permitted to consider their own files and the record of 

conviction.” (Lewis, supra, 43 Cal.App.5th at pp. 1137-1138, rev. granted, citing, e.g., 

People v. Washington (2018) 23 Cal.App.5th 948, 953 [courts conducting initial 

screening of petition for reclassification of qualifying felony convictions under § 1170.18 

may review record of conviction]; In re Serrano (1995) 10 Cal.4th 447, 456 [trial court 

may summarily deny habeas corpus petition based on facts in its file]; but see People v. 

Cooper (2020) 54 Cal.App.5th 106, 109.)

As the trial court discussed, defendant was ineligible for relief because he had not 

been convicted of felony murder or murder under a theory of natural and probable 

consequences: “The only theory of first degree murder upon which the jury was 

instructed was that of a ‘willful, deliberate and premeditated killing with express malice 

aforethought,’ and that instruction included specific language specifying that to find guilt 

of first degree murder the jury must find that defendant [] has a ‘clear, deliberate intent

. . . to kill.’ ” No instruction was given on either felony murder or the natural and 

probable consequences doctrine. Defendant was therefore ineligible for relief under 

section 1170.95, which applies only to those “convicted of felony murder or murder 

under a natural and probable consequences theory.” (§ 1170.95, subd. (a).)
9

Defendant alternatively argues that the trial court’s summary denial of his petition 

violated his federal constitutional right to counsel under the Sixth Amendment. 

However, defendant had no constitutional right to counsel at this stage of a section 

1170.95 proceeding. This provision’s retroactive relief reflects an act of lenity by the 

Legislature and is not subject to Sixth Amendment analysis. (Cf. People v. Anthony

(2019) 32 Cal.App.5th 1102, 1156 [no right to jury trial in proceedings under Bill 1437 

because its retroactive relief is “an act of lenity that does not implicate defendants’ Sixth 

Amendment rights”].) 

Finally, defendant claims the summary denial of his petition violated his 

procedural due process rights because it deprived him of procedures to which he was 

entitled under section 1170.95. As discussed, however, the trial court’s summary denial 

of appellant’s petition complied with section 1170.95’s procedures. Defendant has 

therefore suffered no due process violation.

C. Harmless Error

There is no disagreement that had the trial court determined defendant made the 

required prima facie showing, it would have then been required to appoint counsel for 

him. (See § 1170.95, subd. (c).) Defendant’s argument is thus that after receiving his 

petition, the trial court should have appointed counsel and deferred ruling on the petition 

until the government had filed a response, and defendant—with the assistance of 

counsel—a reply. But defendant has not offered any explanation for how the assistance 

of counsel in drafting a reply brief could have produced a different result. 

Defendant’s bare petition does not support a prima facie showing that he falls 

within the provisions of section 1170.95. Further, as summarized by the trial court, his 

record of conviction precludes it. (See Verdugo, supra, 44 Cal.App.5th at pp. 329-330, 

rev. granted.) The trial court properly determined that defendant’s record of conviction 

showed he did not fall within the provisions of section 1170.95 because “[t]he only 

theory of first degree murder upon which the jury was instructed was that of a ‘willful, 
10

deliberate and premeditated killing with express malice aforethought,’ and that 

instruction included specific language specifying that to find guilt of first degree murder 

the jury must find that defendant [] has a ‘clear, deliberate intent . . . to kill.’ ” Even with 

the benefit of counsel appointed to represent him in this appeal, defendant is patently 

ineligible for relief under the statute. 

Under these circumstances, even assuming appointment of counsel was required, 

the trial court’s failure to do so was harmless beyond a reasonable doubt. (See People v.

Cornelius, supra, 44 Cal.App.5th at p. 58, rev. granted [rejecting contention that trial 

court erred in ruling on § 1170.95 petition before appointing counsel where petitioner 

was “indisputably ineligible for relief”].)

DISPOSITION

The judgment (order) denying the petition is affirmed.

 /s/

RAYE, P. J.

We concur:

 /s/

HULL, J.

 /s/

MURRAY, J.