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Filed 11/29/21 P. v. Hoong 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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.

TONY HOONG,

Defendant and Appellant.

C093483

(Super. Ct. No. 03F08566)

Defendant Tony Hoong appeals the trial court’s denial of his Penal Code section 

1170.95 resentencing petition.1 He contends the trial court erred in concluding that 

defendant failed to make a prima facie case for relief based on its finding that the 

evidence in the record would be sufficient to support a murder conviction under the 

enacting legislation, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, 

1 Undesignated statutory references are to the Penal Code.
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§ 4). The Attorney General concedes the issue and asks this court to reverse the trial 

court’s erroneous order and remand the matter for proceedings consistent with section 

1170.95. We accept the People’s concession and will reverse the order and remand.

PROCEDURAL BACKGROUND

In 2005, a jury found defendant and his codefendant guilty of first degree murder 

with related gang and firearm enhancements (§§ 187, subd. (a), 186.22, subd. (b)(1),

12022.53, subds. (d), (e)). On direct appeal, this court affirmed defendant’s murder 

conviction but struck the enhancements. The facts underlying the conviction are not 

relevant to our disposition on appeal and are therefore not recounted here.

On November 5, 2019, this court held in an unpublished opinion that defendant

was entitled to habeas relief on his first degree murder conviction. (In re Hoong (Nov. 5, 

2019, C085638) [nonpub. opn.].) Relief was required because this court could not 

determine beyond a reasonable doubt that the jury in defendant’s case did not rely on the 

natural and probable consequences doctrine to find defendant guilty of first degree 

murder. The first degree murder conviction was vacated and the matter remanded “to the 

trial court with directions to allow the People to accept a reduction of the conviction to 

second degree murder, or to elect to retry [defendant] for first degree murder under a 

theory or theories other than natural and probable consequences.” (In re Hoong, supra, 

C085638.) On July 29, 2020, defendant was resentenced on one count of second degree 

murder to a total term of 15 years to life. 

In March 2020, defendant filed a petition for resentencing under newly enacted 

section 1170.95. The court then appointed counsel for defendant, and both parties 

subsequently submitted briefing on the applicability of section 1170.95. The trial court 

issued a written order denying resentencing, observing that this court “had concluded, in 

the original appellate opinion, that the evidence was sufficient for a jury to have 

convicted defendant [ ] of first degree murder, based on direct aiding and abetting a first 

degree murder, a theory that has survived [Senate Bill No.] 1437.” The court then 
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discussed how the evidence in the record was “sufficient for a jury to conclude, beyond a 

reasonable doubt, that defendant [ ] directly aided and abetted” both “an express malice 

murder” and “an implied malice murder.” In support of its order, the court expressly 

relied on People v. Garcia (2020) 57 Cal.App.5th 100, review granted February 10, 2021, 

S265692 (Garcia). Noting a split of authority in the Courts of Appeal on the issue, the 

trial court found Garcia persuasive and concluded that “[u]nder that substantial evidence 

view, defendant [ ] has failed to set forth a prima facie case for relief.” Finally, the court 

concluded that this court’s prior determination that defendant was entitled to a reduction 

of his conviction was not controlling on this matter. 

Defendant timely appealed. 

DISCUSSION

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

issuing an order to show cause and conducting an evidentiary hearing. Conceding the 

error, the People posit that the trial court misconstrued the requirement in section 1170.95 

that the petitioner state a prima facie case for relief. The parties request that this court 

reverse the order and remand the matter with instructions to issue an order to show cause 

and to hold an evidentiary hearing on the merits of the petition. We agree with the parties 

and will reverse the order with instructions.

Because this issue of statutory interpretation presents a question of law, our review 

is de novo. (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.) To obtain relief pursuant 

to section 1170.95, an offender must file a petition in the sentencing court setting forth 

his eligibility under the section, including that he was prosecuted under a theory of felony 

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

but 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)(1)-(3); see also 
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§ 1170.95, subd. (b)(1)(A).) 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).) “Where the petition complies with subdivision (b)’s three

requirements, then the court proceeds to subdivision (c) to assess whether the petitioner

has made ‘a prima facie showing’ for relief. [Citation.] [¶] If the trial court determines

that a prima facie showing for relief has been made, the trial court issues 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.’ [Citation.] 

. . . 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.’ [Citation.]” 

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

Before our Supreme Court’s decision in Lewis, a number of courts “read section 

1170.95, subdivision (c)’s two references to ‘a prima facie showing’ to require two 

distinct, sequential inquiries: one ‘that petitioner “falls within the provisions” of the 

statute,’ and a second ‘ “that he or she is entitled to relief.” ’ ” (Lewis, supra, 11 Cal.5th 

at p. 961.) The Lewis court rejected this interpretation of section 1170.95, subdivision 

(c), and concluded that subdivision (c) describes only a single prima facie showing. 

(Lewis, at p. 962.) The court held that, “[c]onsidering subdivision (c)’s language in the 

context of section 1170.95 as a whole [citation], subdivision (c) clearly describes a single 

process.” (Lewis, at p. 962.) Therefore, under the statute, once defendant files a facially 

sufficient petition laying out his eligibility under the section and requests counsel, he is 

entitled to appointment of counsel and to be heard on the subdivision (c) inquiry. (Lewis,

at p. 970.)

Here, it is undisputed by the parties that defendant’s petition established a prima 

facie showing he is entitled to relief. (§ 1170.95, subd. (c).) As required, his petition 
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alleged a complaint, information, or indictment was filed against him allowing the 

prosecution to proceed under a theory of felony murder or murder under the natural and 

probable consequences doctrine; he was convicted of first or second degree murder 

following a trial; and he 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).) 

And the parties do not argue, nor does the record before us conclusively establish, 

defendant was categorically ineligible for relief as a matter of law. (See Lewis, supra, 11

Cal.5th at pp. 971, 972 [holding that the trial court “may look at the record of conviction 

after the appointment of counsel to determine whether a petitioner has made a prima facie 

case for section 1170.95 relief” but should not engage in factfinding or make credibility 

determinations before an order to show cause issues].)

We recognize that prior to the Supreme Court’s decision in Lewis, some Courts of 

Appeal approved the summary denial of a section 1170.95 petition based on a substantial 

evidence review of the record of conviction. (See, e.g., Garcia, supra, 57 Cal.App.5th at 

p. 118, rev.gr.).) According to Garcia, a trial court may summarily deny a section

1170.95 petition even when the petitioner’s assertions are not “ ‘conclusively refut[ed]

. . . as a matter of law’ ” if substantial evidence in the record “supports a murder 

conviction under current law.” (Garcia, at p. 116.) Garcia cites People v. Duke (2020) 

55 Cal.App.5th 113, review granted January 13, 2021, S265309, as authority for using 

the substantial evidence test to summarily deny a section 1170.95 petition. Duke, 

however, involved a section 1170.95 petition that was denied after the trial court 

conducted a full evidentiary hearing. (Duke, supra, at p. 119.) An evidentiary hearing

conducted under section 1170.95, subdivision (d) is separate from, and occurs after, the 

prima facie showing required under section 1170.95, subdivision (c). At the evidentiary 

hearing, the prosecution must prove beyond a reasonable doubt that the petitioner is 

ineligible for resentencing. (§ 1170.95, subd. (d).) Several courts have explicitly 

disagreed with Duke’s application of the substantial evidence test at the evidentiary 
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hearing, but even Duke does not advocate conducting a substantial evidence review at the 

prima facie stage.

We conclude the trial court’s use of a substantial evidence test at the prima facie 

stage in this case was in error. (Lewis, supra, 11 Cal.5th at p. 974.) His petition asserted 

facts which, if accepted as true, fulfilled the requirements for relief, and there were no 

readily ascertainable facts from the record demonstrating that, as a matter of law, he was 

not entitled to relief. Therefore, the trial court erred by not issuing an order to show 

cause and holding an evidentiary hearing before evaluating and weighing the evidence 

presented and ruling on the merits of defendant’s petition.

DISPOSITION

The order denying defendant’s section 1170.95 petition is reversed. The matter is

remanded to the superior court with directions to issue an order to show cause and hold

an evidentiary hearing on defendant’s petition.

 KRAUSE , J.

We concur:

 RAYE , P. J.

 MAURO , J.