Filed 8/13/21 P. v. Soy CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

KIRIVUTHY SOY,

Defendant and Appellant.

B307805

(Los Angeles County

Super. Ct. No. NA074870)

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County. Gary J. Ferrari, Judge. Reversed and 

remanded with directions.

Judith Kahn, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Charles S. Lee and Michael C. 

Keller, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________
2

Kirivuthy Soy appeals the summary denial of his petition 

for resentencing under Penal Code section 1170.95.1 The parties 

agree that because the record of conviction does not demonstrate 

appellant is ineligible for relief as a matter of law, the trial court 

summarily denied the petition in error. We agree and remand 

the matter to the trial court for further proceedings, including the 

issuance of an order to show cause and an evidentiary hearing in 

accordance with section 1170.95, subdivision (d).

2

FACTUAL3 AND PROCEDURAL BACKGROUND

Appellant Kirivuthy Soy and his twin brother, Kirivudy 

(D. Soy), were jointly tried and convicted of the second degree 

murder of Dara Ork. While appellant pointed a firearm at one of 

Ork’s companions, D. Soy ran toward Ork and stabbed him. Ork 

suffered eight stab wounds and died. (Soy, supra, B253692.)

At trial the jury was instructed that appellant could be 

found guilty of murder either as a direct aider and abettor or 

1 Undesignated statutory references are to the Penal Code.

2 On remand, appellant seeks reconsideration of his motion 

for resentencing under Senate Bill No. 620. However, if the trial 

court grants appellant’s section 1170.95 petition, the firearm 

enhancement would necessarily be stricken as part of 

resentencing, making appellant’s request moot. If the 

resentencing petition is denied after an evidentiary hearing, 

appellant would not be entitled to relief under Senate Bill 

No. 620 because his conviction is final.

3 The statement of facts is drawn from this court’s decision 

filed on September 14, 2015, in appellant’s direct appeal from his 

conviction. (People v. Kirivudy Soy et al. (Sept. 14, 2015, 

B253692) [nonpub. opn.] (Soy); People v. Cruz (2017) 15 

Cal.App.5th 1105, 1110 [appellate opinion is part of the record of 

conviction].)
3

under the natural and probable consequences doctrine if he aided 

and abetted an assault with a deadly weapon. Finding appellant 

and his brother guilty of second degree murder, the jury found 

that D. Soy had personally used a deadly weapon, a knife

(§ 12022, subd. (b)(1)), and appellant had personally and 

intentionally used a firearm (§ 12022.53, subd. (b)). The trial 

court sentenced appellant to a term of 15 years to life plus 10 

years for the use of a firearm. (Soy, supra, B253692.)

We affirmed the judgments of conviction as to both 

defendants on direct appeal. Based on the evidence that D. Soy 

stabbed Ork to death while appellant pointed a firearm at Ork’s 

companion, we concluded “there was sufficient evidence to 

support the finding that [appellant] aided and abetted D. Soy’s 

crime.” We further noted that “even if the intended crime was 

only an assault with a deadly weapon, the jury was also 

instructed on aiding and abetting within the theory of natural 

and probable consequences. (CALJIC No. 3.02.)” (Soy, supra, 

B253692.)

On December 13, 2019, appellant filed a section 1170.95

petition seeking to have his murder conviction vacated, as well as 

a request for resentencing under Senate Bill No. 620. Following 

briefing and argument by the parties, the trial court summarily 

denied the section 1170.95 petition for failure to state a prima 

facie case for relief. Noting that appellant’s conviction was final, 

the court also denied the request for resentencing under Senate 

Bill No. 620 for lack of jurisdiction.
4

DISCUSSION

I. Appellant’s Petition Stated a Prima Facie Case 

for Relief Under Section 1170.95, Thus 

Necessitating Remand to the Trial Court to 

Issue an Order to Show Cause and Conduct an 

Evidentiary Hearing

A. Applicable Law

The Legislature enacted Senate Bill No. 1437 to “amend 

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, subd. (f); 

People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile); People v. 

Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).) To

accomplish this objective with respect to the natural and probable 

consequences doctrine, Senate Bill No. 1437 added section 188, 

subdivision (a)(3), defining malice, to require that all principals 

to murder must act with express or implied malice to be convicted 

of that crime, with the exception of felony murder under section 

189, subdivision (e). (Stats. 2018, ch. 1015, § 2; Gentile, at 

pp. 842–843.) By these amendments, Senate Bill No. 1437 thus 

altogether eliminated natural and probable consequences liability 

for murder. (People v. Lewis (July 26, 2021, S260598) 

___Cal.5th___ (Lewis) [2021 Cal. LEXIS 5258 at p. *2].)

Senate Bill No. 1437 also added section 1170.95 to provide 

a procedure by which persons previously convicted of murder 

under a natural and probable consequences theory may seek 

retroactive relief if they could no longer be convicted of murder 
5

because of the amendments to section 188. (Lewis, supra, ___ 

Cal.5th at p. ___ [2021 Cal. LEXIS 5258 at p. *2]; Gentile, supra, 

10 Cal.5th at p. 843; Martinez, supra, 31 Cal.App.5th at pp. 722–

723.)

Subdivision (a) of section 1170.95 sets forth the 

requirements for a facially sufficient petition. The petitioner 

must aver that (1) the charging document “allowed the 

prosecution to proceed under a theory of felony murder or murder 

under the natural and probable consequences doctrine”; 

(2) “petitioner was convicted of first or second degree murder”; 

and (3) “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); People v. Drayton (2020) 

47 Cal.App.5th 965, 973 (Drayton).) Subdivision (b) in turn 

“describes where and how the petition must be filed and specifies 

its required content,” including a declaration by the petitioner 

that he or she “is eligible for relief according to the criteria set 

out in subdivision (a).” (Drayton, at p. 973.) If a petition fails to 

comply with subdivision (b)(1), ‘the court may deny the petition 

without prejudice to the filing of another petition.’ (§ 1170.95, 

subd. (b)(2).)” (Lewis, supra, ___ Cal.5th at p. ___ [2021 Cal. 

LEXIS 5258 at p. *7].)

If a petition for resentencing under section 1170.95 meets 

the requirements of subdivisions (a) and (b), the trial court 

“proceeds to subdivision (c)[4] to assess whether the petitioner has 

4 Section 1170.95, subdivision (c) provides in relevant part: 

“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 
6

made ‘a prima facie showing’ for relief. (§ 1170.95, subd. (c).)” 

(Lewis, supra, ___ Cal.5th at p. ___ [2021 Cal. LEXIS 5258 at

p. *7].) At this stage, the trial court must accept briefing from 

the parties before making its prima facie determination of 

eligibility. (Lewis, supra, ___ Cal.5th at p. ___ [2021 Cal. LEXIS 

5258 at pp. *21, 28–29].)

With the benefit of the parties’ briefing, the trial court may 

then consider the record of conviction, including the jury 

instructions, verdict form(s), and any special findings or 

enhancement allegations the jury found true to determine if the 

petition makes a prima facie showing of entitlement to relief. 

(Lewis, supra, ___ Cal.5th at p. ___ [2021 Cal. LEXIS 5258 at

p. *29]; People v. Duchine (2021) 60 Cal.App.5th 798, 815 

(Duchine).) Although “[t]he record of conviction will necessarily 

inform the trial court’s prima facie inquiry under section 1170.95, 

allowing the court to distinguish petitions with potential merit 

from those that are clearly meritless . . . the prima facie inquiry 

under subdivision (c) is limited.” (Lewis, supra, ___ Cal.5th at 

p. ___ [2021 Cal. LEXIS 5258 at p. *30.) Thus, in conducting its 

prima facie review, the trial court does not engage in factfinding, 

but “ ‘ “takes petitioner’s factual allegations as true and makes a 

preliminary assessment regarding whether the petitioner would 

be entitled to relief if his or her factual allegations were proved. 

If so, the court must issue an order to show cause.” ’ ” (Lewis, at 

p. ___ [2021 Cal. LEXIS 5258 at p. *31, quoting Drayton, supra, 

47 Cal.App.5th at p. 978.) “ ‘However, if the record, including the 

court’s own documents, “contain[s] facts refuting the allegations 

makes a prima facie showing that he or she is entitled to relief, 

the court shall issue an order to show cause.”
7

made in the petition,” then “the court is justified in making a 

credibility determination adverse to the petitioner.” ’ ” (Lewis, at 

p. ___ [2021 Cal. LEXIS 5258 at p. *31, quoting Drayton, at 

p. 979.)

If the trial court determines that petitioner has made a

prima facie showing for relief, the court must issue an order to 

show cause, “and then must hold a hearing ‘to determine whether 

to vacate the murder conviction and to recall the sentence and 

resentence the petitioner on any remaining counts in the same 

manner as if the petitioner had not . . . previously been 

sentenced, provided that the new sentence, if any, is not greater 

than the initial sentence.’ (§ 1170.95, subd. (d)(1).) ‘The 

prosecutor and the petitioner may rely on the record of conviction 

or offer new or additional evidence to meet their respective 

burdens.’ (§ 1170.95, subd. (d)(3).) At the hearing stage, ‘the 

burden of proof shall be on the prosecution to prove, beyond a 

reasonable doubt, that the petitioner is ineligible for 

resentencing.’ (§ 1170.95, subd. (d)(3).)” (Lewis, supra, ___ 

Cal.5th at p. ___ [2021 Cal. LEXIS 5258 at pp. *7–8].)

B. The trial court erred in denying appellant’s section 

1170.95 petition without issuing an order to show cause 

and conducting an evidentiary hearing.

Appellant’s petition satisfied the criteria for a facially 

sufficient petition under section 1170.95, subdivisions (a) and (b), 

and the record of conviction did not demonstrate ineligibility for 

relief as a matter of law. Remand is required to enable the trial

court to issue an order to show cause and conduct an evidentiary 

hearing under section 1170.95, subdivisions (c) and (d).

A defendant is ineligible for relief as a matter of law where 

the record conclusively shows that the jury actually relied—and 
8

the defendant’s murder conviction actually rests—upon on a 

theory of liability that is unaffected by section 1170.95 (that is, on 

the theory that defendant was the actual killer or directly aided 

and abetted the killing).

Here, the record of conviction does not establish, as a 

matter of law, that appellant is not eligible for relief. The record 

shows that appellant did not personally kill Ork, but there was 

substantial evidence to support both direct aiding and abetting 

and natural and probable consequences theories of guilt. The fact 

that substantial evidence supports appellant’s conviction on a 

valid theory, however, does not mean that the record in this case 

conclusively shows that the jury actually relied upon that valid

theory or that the jury did not rely on the invalid theory. 

(Drayton, supra, 47 Cal.App.5th at p. 968 [in assessing whether a 

petitioner has established a prima facie case, the trial court 

“should accept the assertions in the petition as true unless facts 

in the record conclusively refute them as a matter of law”], italics 

added.) To the contrary, the record in this case reveals that the 

jury was instructed on two theories—one valid under section 

1170.95 (that is, direct aiding and abetting) and one invalid 

under section 1170.95 (that is, natural and probable 

consequences liability with the underlying crime being assault 

with a deadly weapon)—and the jury’s general verdict finding of 

guilt does not conclusively establish which of these theories the 

jury actually relied upon in returning that verdict. (Cf. People v. 

Edwards (2020) 48 Cal.App.5th 666, 674, review granted Jul. 8, 

2020, S262481 [defendant is ineligible for section 1170.95 relief 

as a matter of law if the jury is never instructed on an invalid 

theory].)
9

In sum, because appellant has made a prima facie showing 

that he is entitled to relief under section 1170.95 and the record 

of conviction does not show him to be ineligible as a matter of 

law, the trial court’s summary denial of his petition was in error. 

The matter is therefore remanded to the trial court for issuance 

of an order to show cause and an evidentiary hearing in 

accordance with subdivisions (c) and (d) of section 1170.95.

C. At the evidentiary hearing under section 1170.95, 

subdivision (d), the People must prove, beyond a 

reasonable doubt, every element of liability for murder 

under current law.

At the hearing following the trial court’s issuance of an 

order to show cause, the prosecution will have the burden of 

proving beyond a reasonable doubt that appellant is ineligible for 

resentencing, and both parties may offer new or additional 

evidence on that issue. (§ 1170.95, subd. (d)(3).) However, there 

is currently a split in authority on what legal standard a trial 

court should apply at a section 1170.95, subdivision (d) hearing. 

In People v. Duke (2020) 55 Cal.App.5th 113, 123, review granted 

Jan. 13, 2021, S265309, Division One of this District concluded 

the applicable standard is akin to substantial evidence review. 

That is, “[t]o carry its burden, the prosecution must . . . prove 

beyond a reasonable doubt that the defendant could still have 

been convicted of murder under the new law—in other words, 

that a reasonable jury could find the defendant guilty of murder 

with the requisite mental state for that degree of murder. This is 

essentially identical to the standard of substantial evidence . . . .”

We rejected this view in People v. Fortman (2021) 64 

Cal.App.5th 217 (Fortman), review granted July 21, 2021, 

S269228. There, we held “that, at the hearing contemplated by
10

section 1170.95, subdivision (d), the People are required to prove

to the trial court beyond a reasonable doubt that the petitioner is 

guilty of murder on a theory of murder valid after Senate Bill 

1437’s enactment.” (Id., at p. 226, rev.gr.; see People v. Lopez

(2020) 56 Cal.App.5th 936, 949 (Lopez), review granted Feb. 10, 

2021, S265974; Duchine, supra, 60 Cal.App.5th at p. 814 [“idea 

that the prosecution must prove beyond a reasonable doubt that 

there is substantial evidence in a prior record to support a 

hypothetical finding of guilt on a theory of murder that may 

never have been presented to a jury is beyond”

incomprehensible]; People v. Clements (2021) 60 Cal.App.5th 597, 

617–618 (Clements), review granted Apr. 28, 2021, S267624; 

People v. Hernandez (2021) 60 Cal.App.5th 94, 103; People v. 

Rodriguez (2020) 58 Cal.App.5th 227, 241–244 (Rodriguez), 

review granted Mar. 10, 2021, S266652.)5

5 In granting review in People v. Duke, supra, 55 

Cal.App.5th 113 (review granted Jan. 13, 2021, S265309), the 

Supreme Court framed the issue as follows: “Can the People 

meet their burden of establishing a petitioner’s ineligibility for 

resentencing under Penal Code section 1170.95, subdivision (d)(3) 

by presenting substantial evidence of the petitioner’s liability for 

murder under Penal Code sections 188 and 189 as amended by 

Senate Bill No. 1437 (Stats. 2018, ch. 1015), or must the People 

prove every element of liability for murder under the amended 

statutes beyond a reasonable doubt?” 

(https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScre

en.cfm?dist=0&doc_id=2332572&doc_no=S265309&request_toke

n=NiIwLSEmTkw3WzBdSCNNSElJUFQ0UDxTJSNOSzpRICAg

Cg%3D%3D [as of Aug. 10, 2021], archived at

<https://perma.cc/AFT4-R3TA>; see Lopez, supra, 56 Cal.App.5th 

936, rev.gr. [briefing deferred pending decision in Duke]; 
11

Our Supreme Court will resolve this split in Duke, but until

it does, “we join the growing chorus that requires an independent 

finding by the trial court,” and proof beyond a reasonable doubt 

by the People that the petitioner is ineligible for relief. (Fortman, 

supra, 64 Cal.App.5th at p. 221, rev.gr.)

II. Appellant’s Request for Reconsideration of his 

Motion to Strike the Firearm Enhancement in 

Combination with Resentencing Is Moot

Appellant requests that on remand, should the trial court 

resentence him under section 1170.95, the court be directed to 

entertain his motion to strike the firearm enhancement imposed 

under section 12022.53, subdivision (b). If the court grants 

appellant’s section 1170.95 petition and resentences him, 

however, the firearm enhancement would necessarily be stricken 

because his only remaining conviction would be assault with a 

deadly weapon, which is not one of the offenses enumerated in 

section 12022.53. In that instance, appellant’s request would be 

moot. On the other hand, if the trial court denies the 

resentencing petition after an evidentiary hearing, appellant 

would not be entitled to relief under Senate Bill No. 620 because 

his conviction remains final.

Rodriguez, supra, 58 Cal.App.5th 227, rev.gr. [same]; Clements, 

supra, 60 Cal.App.5th 597, rev.gr. [same].)
12

DISPOSITION

The postjudgment order is reversed. The matter is 

remanded to the trial court for the issuance of an order to show 

cause and further proceedings in accordance with Penal Code 

section 1170.95, subdivision (d). If the trial court conducts an 

evidentiary hearing in accordance with Penal Code section 

1170.95, subdivision (d)(3), the court, acting as an independent 

factfinder, must determine whether the prosecution has 

established beyond a reasonable doubt that the petitioner is 

guilty of murder on a theory of murder that remains valid after 

the changes in the law engendered by Senate Bill No. 1437 and is

thus ineligible for relief.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

CHAVEZ, J.

HOFFSTADT, J.