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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

KI RIVUTHY 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

. J udith 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 resenten cing 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 m atter 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
FACTUAL 3 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 e ight 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, a ppellant 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 enhanceme nt 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 f inal.

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.A pp.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 assau lt with a deadly weapon. Finding appellant and his brother guilty of second degree murder, t he 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 (§ 12 022.53, 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 th at 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 w as 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 petiti on 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,

t he 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 U nder 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 re ckless 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 an d 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 murd er under section 189, subdivision (e)

. (Stats. 2018, ch. 1015, § 2 ; Gentile , at

pp

. 842

– 843

. ) By these amendments, Senate Bill No. 1437 thus altogether eliminat ed 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 see k retroactive relief if they could no longer be convicted of murder5

because of the amendment s 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. T he 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 petitioner6

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 ma king 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
i nstructions, 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, i n conducting its prima facie review , the trial court does not engage in f actfinding,
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. * 3 1 , 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 showin g 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 pet itioner 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 additio nal 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 a ppellant’s section 1170.95 petition without issu ing an order to show cause
and conduct ing an evidentiary hearing.
A ppellant’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 i s required to enable t he 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 ju ry actually relied

— and8

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 r ecord 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 a nd probable consequences theories of guilt

. T he 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 estab lished 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 i nstructed 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 th e 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.
E dwards (2020) 48 Cal.App.5th 666, 674 , review granted Jul. 8, 2020, S262481 [defenda nt 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 doub t

, 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
resentenci ng, and both parties may offer new or additional evidence on that issue. (§ 1170.95, subd. (d)(3).) However

, t here is currently a split in authority on what legal standard a trial court should apply at a section 1170.95, subdivision (d) hearing.
In Peop le v. Duke (2020) 55 Cal.App.5th 113, 123, rev iew 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. Thi s 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 Jul y 21, 2021,
S269228 . There, we held “that, at the hearing contemplated by10

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. Lope z (2020) 56 Cal.App.5th 936, 949 ( Lopez ), rev iew granted Feb. 10, 2021, S265974 ; Duch ine

, 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. Hern andez (2021) 60 Cal.App.5th 94, 103 ; People v. Rodriguez (2020) 58 Cal.App.5th 227, 24 1

– 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 th is split in Duke , but u ntil
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
Mo tion 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
dea dly 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, i f the trial court denies the resentencing petition after an evidentiary hearing, appellant
would not be entitled to relief under Senate Bill No. 620 b ecause his c onviction remains f inal

.

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 Se nate Bill No. 1437 and is thus ineligible for relief

. NOT TO BE PUBLISHED

.

LUI, P. J.
We concur:

CHAVEZ

, J.

HOFFSTADT

, J.