Filed 6/6/22 P. v. Mangsanghanh CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

BOUALY MANGSANGHANH,

Defendant and Appellant.

F081780

(Super. Ct. No. CF06901120)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Gary R. 

Orozco, Judge.

Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez, Christina H. 

Simpson, Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Franson, Acting P. J., Peña, J. and Smith, J.
2.

INTRODUCTION

Petitioner Boulay Mangsanghanh petitioned the trial court for resentencing on her

two convictions for first degree murder. (Pen. Code,1 § 1170.95.) The court denied the 

petition on the ground petitioner is ineligible for resentencing because she was convicted 

of first degree murder as a direct aider and abettor and not under the felony-murder rule 

or natural and probable consequences doctrine. 

On appeal, petitioner contends the trial court reversibly erred in looking beyond 

her facially sufficient petition and engaging in premature factfinding. We conclude the 

court did not err and, in any event, the record of conviction establishes petitioner is 

ineligible for resentencing as a matter of law. Accordingly, we affirm. 

FACTUAL AND PROCEDURAL HISTORY

The charges against petitioner arose out of an incident in which petitioner was 

alleged to have served as the getaway driver in a retaliatory gang-related shooting that 

resulted in the death of Nath Ouch and her unborn child. (People v. Mangsanghanh 

(Feb. 19, 2009, F054382) [nonpub. opn.] (Mangsanghanh).)2 

Petitioner was tried jointly with codefendants Sokol Yann, Sokmorn Chea, and 

Jonathan Perkins. The jury convicted petitioner of two counts of first degree murder as to 

Ouch and her unborn child (§ 187, subd. (a)). As to each count, the jury also found true a 

multiple-murder special circumstance (§ 190.2, subd. (a)(3)), and a gang enhancement

(§ 186.22, subd. (b)(1)). Petitioner was sentenced to a term of life without the possibility 

of parole for the murder of Ouch and a concurrent term of life without possibility of 

parole for the murder of Ouch’s unborn child. The court imposed and stayed sentence on 

the gang enhancement. On appeal, this court vacated one of the multiple-murder special 

1 Undesignated statutory references are to the Penal Code. 

2 We grant the People’s unopposed request for judicial notice of this court’s 

opinion in petitioner’s direct appeal. However, we do not rely on the factual summary 

from our opinion in petitioner’s direct appeal to resolve the issues presented in this 

appeal. (See § 1170.95, subd. (d)(3).)
3.

circumstances on the ground only one such special circumstance may be applied in a 

single proceeding, but otherwise affirmed. (Mangsanghanh, supra, F054382.)

On March 4, 2019, petitioner, in propria persona, filed a petition for resentencing 

pursuant to section 1170.95. In the form petition, petitioner stated that a complaint, 

information, or indictment was filed against her that allowed her to be prosecuted under a 

theory of felony murder or murder under the natural and probable consequences doctrine; 

she was convicted of first or second degree murder at trial; and she could not now be 

convicted of first or second degree murder because of changes made to sections 188 and 

189, effective January 1, 2019. She further averred that she was not the actual killer, did 

not act with an intent to kill, and was not a major participant in the underlying felony or 

did not act with reckless indifference to human life in the course of the crime, and the 

victim was not a peace officer in the performance of his or her duties. She also requested 

counsel be appointed to represent her on the petition. 

On the same date, the People filed a motion to dismiss the petition on the ground 

petitioner is ineligible for resentencing.3 The People argued petitioner was a major 

participant in the murders and was convicted as a direct aider and abettor without reliance 

on the felony-murder rule. Petitioner, through counsel, filed a reply, arguing she is 

eligible for resentencing because she did not act with intent to kill or as a major 

participant who acted with reckless indifference to human life. Thereafter, the parties 

filed several supplemental memoranda and points and authorities relating to petitioner’s 

eligibility for resentencing. 

The matter was heard on September 2, 2020. The trial court noted it had reviewed 

the parties’ briefs, as well as trial transcripts. The court stated it had taken judicial notice 

of the record of conviction, including the jury instructions, and tentatively concluded 

3 The People also filed a separate motion to dismiss on the ground Senate Bill 

No. 1437 (2017-2018 Reg. Sess.) is unconstitutional. The motion was fully briefed but 

was not ruled on by the court. 
4.

petitioner was ineligible for resentencing as a matter of law. The court noted the jury was 

presented with theories of first degree murder based on premeditation and deliberation or 

lying in wait, and was instructed with regard to those theories on direct aiding and 

abetting with express or implied malice. The court also noted that, with regard to the 

special circumstances, the jury was instructed it was required to find petitioner aided and 

abetted in the murder with intent to kill. Alternatively, the court noted that, based on the 

facts presented at trial, petitioner was a major participant in the felony who acted with 

reckless indifference to human life.4 Ultimately, the court concluded petitioner was 

convicted as a direct aider and abettor who acted with actual malice and was not 

convicted of felony murder or under a natural and probable consequences theory. 

Accordingly, the court determined petitioner is ineligible for resentencing as a matter of 

law and her petition was denied. 

This timely appeal followed. 

DISCUSSION

I. Applicable Law 

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018 

Reg. Sess.) “to amend the felony murder rule and the natural and probable consequences 

doctrine . . . 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 accomplished this task by adding three separate 

provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) 

First, to amend the natural and probable consequences doctrine, the bill added 

section 188, subdivision (a)(3), which requires a principal to act with malice aforethought 

4 However, the court made clear that this alternative analysis was not the basis for 

its ruling. 
5.

before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at 

pp. 842-843.) Second, to amend the felony-murder rule, the bill added section 189, 

subdivision (e):

“A participant in the perpetration or attempted perpetration of [qualifying 

felonies] 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.”5 (§ 189, subd. (e); accord, Gentile, at p. 842.)

Finally, the bill added section 1170.95 to provide a procedure for those convicted of a 

qualifying offense “to seek relief under the two ameliorative provisions above.” (Gentile,

at p. 843.) This procedure is available to persons convicted of “felony murder or murder 

under the natural and probable consequences doctrine or other theory under which malice 

is imputed to a person based solely on that person’s participation in a crime, attempted 

murder under the natural and probable consequences doctrine, or manslaughter.” 

(§ 1170.95, subd. (a).) 

“Section 1170.95 lays out a process” for a person convicted of one of the 

aforementioned offenses “to seek vacatur of his or her conviction and resentencing.” 

(Gentile, supra, 10 Cal.5th at p. 853.) First, an offender must file a petition in the 

sentencing court averring that:

“(1) A complaint, information, or indictment was filed against the petitioner 

that allowed the prosecution to proceed under a theory of felony murder, 

murder under the natural and probable consequences doctrine or other 

theory under which malice is imputed to a person based solely on that 

5 Additionally, section 189 was amended to allow for felony-murder liability 

where the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57 

Cal.App.5th 666, 672.)
6.

person’s participation in a crime, or attempted murder under the natural and 

probable consequences doctrine[;]

“(2) The petitioner was convicted of murder, attempted murder, or 

manslaughter following a trial or accepted a plea offer in lieu of a trial at 

which the petitioner could have been convicted of murder or attempted 

murder[; and]

“(3) The petitioner could not presently be convicted of murder or attempted 

murder because of changes to Section 188 or 189 made effective January 1, 

2019.” (§ 1170.95, subd. (a)(1)-(3); see § 1170.95, subd. (b)(1)(A); accord, 

People v. Lewis (2021) 11 Cal.5th 952, 959-960 (Lewis).) 

Additionally, the petition shall state “[w]hether the petitioner requests the appointment of 

counsel.” (§ 1170.95, subd. (b)(1)(C).)

If a petition fails to contain the required information and the information cannot be 

“readily ascertained” by the court, the petition may be denied without prejudice to the 

filing of another petition. (§ 1170.95, subd. (b)(2).) Otherwise, counsel must be 

appointed, if requested. (§ 1170.95, subd. (b)(3).) The prosecutor must file a response 

and the petitioner may file a reply. The trial court must then hold a hearing to determine 

if the petitioner has made a prima facie showing that he or she is entitled to relief. 

(§ 1170.95, subd. (c); accord, Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making 

this determination, the court may rely on the record of conviction. (Lewis, at pp. 970-

971.) However, the prima facie inquiry is limited and, at this stage of the proceedings, 

the court “should not engage in ‘factfinding involving the weighing of evidence or the 

exercise of discretion.’ ” (Id. at p. 972.) 

If the court determines the petitioner has met his or her prima facie burden, “the 

trial court must issue an order to show cause and hold a hearing to determine whether to 

vacate the murder[, attempted murder, or manslaughter] conviction and to resentence the 

petitioner on any remaining counts.” (Gentile, supra, 10 Cal.5th at p. 853; accord, 

§ 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must “prove, beyond a 

reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95, 
7.

subd. (d)(3).) The prosecutor and the petitioner may offer new or additional evidence to 

meet their respective burdens. The admission of evidence at the hearing is governed by 

the Evidence Code. However, the court also “may consider evidence previously admitted 

at any prior hearing or trial that is admissible under current law, including witness 

testimony, stipulated evidence, and matters judicially noticed,” as well as the “procedural 

history of the case recited in any prior appellate opinion.” (§ 1170.95, subd. (d)(3).) 

Hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) 

of section 872 is inadmissible at the evidentiary hearing, unless made admissible by 

another exception to the hearsay rule. (§ 1170.95, subd. (d)(3).) 

To demonstrate prejudice from the denial of a section 1170.95 petition before the 

issuance of an order to show cause, the petitioner must show it is reasonably probable 

that, absent error, his or her petition would not have been summarily denied without an 

evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson

(1956) 46 Cal.2d 818, 836.) 

II. Record of Conviction

Petitioner contends the trial court erred in looking beyond her facially sufficient 

petition and reviewing the record of conviction to determine whether petitioner stated a 

prima facie claim for relief. Our Supreme Court rejected this argument in Lewis. (Lewis,

supra, 11 Cal.5th at pp. 970-971.) Indeed, our Supreme Court has stated, “The 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.” (Id. at p. 971.) Accordingly, the trial court did not err in 

considering the record of conviction to determine whether petitioner stated a prima facie 

case.

III. Factfinding at the Prima Facie Stage

Petitioner contends the trial court engaged in improper factfinding at the prima 

facie review. 
8.

The trial court may not engage in factfinding involving the weighing of the 

evidence at the prima facie stage. (Lewis, supra, 11 Cal.5th at p. 972.) Thus, while the 

trial court may consider the record of conviction in determining whether a petitioner has 

stated a prima facie case, the court may not make factual findings based on that record. 

(Ibid.)

Here, the trial court stated that it considered the record of conviction, including the 

jury instructions, trial transcripts, and special circumstance findings to conclude 

petitioner was convicted as a direct aider and abettor who acted with actual malice. As 

we explain in further detail below, this conclusion does not require factfinding and 

therefore is not improper under Lewis. (See Lewis, supra, 11 Cal.5th at p. 972.) 

Although the court also engaged in a factual analysis to conclude petitioner was a major 

participant in the felony who acted with reckless indifference to human life, the court 

made clear that this alternative analysis was not the basis for its ruling. Accordingly, we 

conclude the court did not engage in improper factfinding.

IV. Prejudice

Even if the trial court engaged in improper factfinding, we may affirm if petitioner 

was not prejudiced by the error. (Lewis, supra, 11 Cal.5th at pp. 972-974.) As we 

explain, we conclude petitioner was not prejudiced because the jury’s special 

circumstance findings establish she is ineligible for resentencing as a matter of law. 

Pursuant to section 1170.95, a petitioner is ineligible for resentencing if he or she 

was the actual killer, acted with the intent to kill or malice aforethought, or was a major 

participant in the underlying felony who acted with reckless indifference to human life. 

(§§ 188, subd. (a)(3), 189, subd. (e), 1170.95, subd. (a)(3); see Gentile, supra, 10 Cal.5th 

at p. 842.) Here, as to each count, the jury found true a multiple-murder special 

circumstance pursuant to section 190.2, subdivision (a)(3), which imposes a sentence of 

death or life without the possibility of parole when the defendant is convicted of more 

than one offense of murder in the first or second degree. To find the special 
9.

circumstances true, the jury was required to find that petitioner aided and abetted in the 

murders with intent to kill. (§ 190.2, subds. (a)(3), (c).) The true findings on the special 

circumstances therefore establish the jury made the findings necessary to sustain the 

murder convictions under the law, as amended by Senate Bill No. 1437 (2017-2018 Reg. 

Sess.). Petitioner is ineligible for resentencing as a matter of law and was not prejudiced 

by the court’s errors, if any.

Nevertheless, petitioner argues the special circumstances do not preclude 

resentencing as a matter of law. In support, petitioner relies on People v. York (2020) 54 

Cal.App.5th 250, 258, review granted Nov. 18, 2020, S264954 (York). As petitioner also 

acknowledges, however, this court disagreed with York in People v. Simmons (2021) 65 

Cal.App.5th 739, 749, review granted Sept. 1, 2021, S270048. In Simmons, we declined 

to utilize the section 1170.95 procedure to examine the record of conviction to determine 

whether a special circumstance finding was properly entered. (Simmons, at p. 749.) 

Rather, we concluded that such findings are binding on the issues necessarily decided by 

the jury, unless the findings were invalidated on direct appeal or in a habeas proceeding. 

(Ibid.) Although we recognize review has been granted in Simmons, we see no reason to 

depart from our analysis and conclusions therein. Petitioner’s special circumstance 

finding has not been invalidated on direct appeal or in habeas. The finding establishes 

that petitioner is ineligible for resentencing as a matter of law. She therefore was not 

prejudiced by any procedural errors in the court’s denial of her petition. 

DISPOSITION

The September 2, 2020 order denying petitioner’s section 1170.95 petition for 

resentencing is affirmed.