Filed 4/17/ 23 P. v. Hoang CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

HUNG LINH HOANG,

Defendant and Appellant. G061595

(Super. Ct. No. 03WF1095)

O P I N I O N

Appeal from a post

judgment order of the Superior Court of Orange County,

Jonathan S. Fish, Judge. Affirmed.

James R. Bostwick, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.

No appearance for Plaintiff and Respondent.2 This is the second appeal in which appellant has challenged an order denying his request for resentencing under former Penal Code section 1 170.95. 1 As we

did in the first appeal , we affirm the trial court’s denial order utilizing t he review procedure s set forth in People v. Wende (1979) 25 Cal.3d 436 ( Wende ). Wende review applies in this case because a ppointed counsel filed a brief saying his thorough review of

the record failed to reveal any arguable issues to raise on appellant’s behalf. A t our
invitation, appellant then filed supplemental brief ing on his own behalf. However,

h aving considered th at brief ing , and having reviewed the entire record as required under

Wende , we conclude there are no arguable grounds for disturbing the trial court’s ruling.

PROCEDURAL BACKGROUND In 2004, appellant was convicted of attempted premeditated murder and street terrorism. (§§ 664/187, subd. (a); 186.22, subd. (a).) The jury also found true allegations he personally used a firearm and acted for the benefit of a criminal street
gang. (§ § 12022.53, subd s

. (a) & ( b ), 12022. 5 , subd. (a), 186.22, subd. (b).) The trial

court sentenced him to life in prison with the possibility of parole for the attempted

murder
, plus 10 years

.

On appeal, we affirmed the judgment. ( People v. Hoang (Apr. 2 8, 2006,
G034779) [nonpub. opn.]

. ) However, on subsequent habeas review, we reversed appellant’s street terrorism conviction because he acted alone when trying to murder the

victim. ( In re Hoang (Dec. 29, 2016, G052501) [nonpub. opn.]. )

In 2019, appella nt filed his first petition for resentencing under former

section 1170.95. After the petition was summarily denied
, we affirmed in a Wende
opinion on two grounds. First, at that time, section 117 0.95 did not apply to the crime of attempted murder

. S econd, appellant’s conviction for that offense was not based on

1 That section has since been renumbered without substantive change as Penal Code section 1172.6. ( Stats. 2022, ch. 58, § 10.) All further statutory references are to the Penal Code.3

imputed liability but on his own conduct in attempting to murder the victim with malice aforethought. ( People v. Hoang ( Sept. 27, 2019, G057524 ) [nonpub. opn.].)

In 2022, appellant filed a n ew petition for resentencing , and again t he trial

court turned it down based on appellant ’s failure to make a prima facie case for relief

. That ruling led to this appeal.

DISCUSSION

Appellant’s extensive supplemental briefing raises multi ple contentions,

most of which are geared toward his underlying trial and conviction. But t he only issue before us is the propriety of the trial court’s decision to deny his second petition for resentencing. For reasons we now explain
, there is no reason to disturb that ruling.

Former section 1170 .95 was enacted to limit the scope of imputed liability for the crime of murder and provide a procedural mechanism for convicted murder ers to petition for resentencing under certain circumstances. ( People v. Lewis (2021 ) 11 Cal.5th

952 .) In its original form, the statute applied only to defendants who were convicted of
murder, but in 2021, the L egislature broaden ed its scope to i nclude defendants who were

convicted of attempted murder. ( Stats. 2021, ch. 551

. )

However, the statute specifies that resentencing is available to attempted

murder er s only if they were convicted pursuant to the natural and probable consequences

doctrine . ( St ats. 2021, ch. 551 ; § 1172.6, subd. (a).) Under that doctrine, a defendant who aids and abets criminal conduct is guilty of not only the target crime but any

nontarget crime the perpetrator commits that is a natural and probable consequence of the

target crime. ( People v. Chiu (2014) 59 Cal.4th 155, 161.) In other words, the natural
and probable consequences doctrine is a theory of imputed liability that applies when an accomplice, not the defendant, commits a n offense stemming from their original criminal

scheme.

In this case, though, there were no accomplices, so appellant ’s jury was not instructed on the natural and probable consequences doctrine. Indeed, the record shows4

appellant acted alone in trying to murder the victim
, whi ch is why his street terrorism

conviction was overturned

. Since appellant was convicted of attempted premeditated

murder based on his own actions and his own mental state, he is in eligible for resentencing as a matter of law.

In arguing otherwise, appell ant draws our attention to the instructions his jury received on the lesser included offense of assault. Per CALJIC No. 9.00, the jury

was told:

“ In order to prove an assault, each of the following elements must he
proved: “1. A person willfully committed an act which by its nature would probably and directly result in the application of physical force on another person;

“2. The person committing the act was aware of facts that would lead a
reasonable person to realize that as a direct , natural and probable result of this act that physical force would be applied to another person; and

“3. At the time the act was committed, the person committing the act had
the present ability to apply physical force to the person of another. ”

Pre sent ability was defined to mean “ that at the time of the act which by its nature would probably and directly result in the application of physical force upon the person of another, the pe r petrator of the act must have the physical means to accomplish

that result. ” (CALJIC No. 9.01.)

Given the use of the terms “n atural ” and “ probable ” in these instructions
, appellant speculates he may have been convicted of attempted murder under the natural
and probable c onsequences doctrine. But th ese instructions were limited to the crime of

assault . They were not linked in any fashion to the crime of attempted murder.

Moreover, it is clear the natural and probable terminology used in these

instructions was used to describe the requisite connection between appellant’s own

conduct and the expected result of that conduct. It did not refer to any connection5

between appellant’s conduct and the criminal activity of another person

. Therefore, it did

not implicate the natural and consequences doctrine referenced in section 1170.95. That being the case, appellant does not come within the scope of the statute.

Having independently reviewed the record for any other arguable error, we
conclude there is no tenable basis to challenge the trial court’s ruling. Th erefore, we are powerless to disturb it. ( Wende, supra , 25 Cal.3d 436.)

DISPOSITION The trial court’s order denying appellant’s petition for resentencing is

affirmed.

BEDSWORTH, J.

WE CONCUR:

O’LEARY, P. J.

DELANEY, J.