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Filed 2/8/23 P. v. Thongvilay CA4/2

See dissenting opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

PAMOT JOEY THONGVILAY,

Defendant and Appellant.

E079482

(Super.Ct.No. CR63659)

OPINION

APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge. 

Affirmed.

Reed Webb, under appointment by the Court of Appeal, for Defendant and 

Appellant.

No appearance for Plaintiff and Respondent.
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Defendant and appellant, Pamot Joey Thongvilay, filed a petition for resentencing 

pursuant to former Penal Code former section 1170.95,1 which the superior court denied. 

After defense counsel filed a notice of appeal, this court appointed counsel to represent 

defendant.

Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 

436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), setting forth a 

statement of the facts, a statement of the case, and two potentially arguable issues: 

(1) whether the trial court followed the correct procedure for determining a prima facie 

case and conducting a hearing; and (2) whether defendant’s absence from the hearing 

prejudiced his case.

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We offered defendant an opportunity to file a personal supplemental brief, which 

he has not done. We affirm.

1

 All further statutory references are to the Penal Code unless otherwise indicated.

Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended 

and renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.)

2

In People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), the California 

Supreme Court recently held that Wende and Anders procedures do not apply in appeals 

from the denial of a section 1172.6 postjudgment petition. (Delgadillo, at pp. 224-226.)
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I. PROCEDURAL BACKGROUND3

On March 30, 1995, defendant broke into a woman’s car. (Thongvilay, supra, 

62 Cal.App.4th at p. 76.) The woman’s boyfriend called 911. While he was on the 

phone, defendant returned to his own vehicle and left. The boyfriend got into his own car 

and started to follow defendant. As defendant ran through a red stoplight while 

attempting to elude the boyfriend, defendant’s vehicle struck the victim’s car, killing her. 

(Ibid.)

On March 27, 1996, a jury found defendant guilty of first degree murder (§ 187, 

count 1), “prosecuted on a felony-murder theory, specifically, that the death occurred in 

the course of an automobile burglary in which defendant[] stole the radio from a car and 

[was] pursued by the boyfriend of the owner of the burglarized car.” (Thongvilay, supra, 

62 Cal.App.4th at p. 76.) On June 7, 1996, the court sentenced defendant to state prison 

for 25 years to life. (Id. at p. 77.)

On appeal, defendant acknowledged the rule that “[f]elony-murder liability 

continues throughout the flight of a perpetrator from the scene of a [felony] until the 

perpetrator reaches a place of temporary safety because the [felony] and the accidental 

death, in such a case, are parts of a ‘continuous transaction.’” (Thongvilay, supra, 

62 Cal.App.4th at p. 77.) However, defendant contended the rule should not be extended 

3

 On the court’s own motion, we take judicial notice of our prior published 

opinion. (People v. Thongvilay (1998) 62 Cal.App.4th 71 (Thongvilay); Evid. Code, 

§§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.1115(b)(1).) The parties below, and

defense counsel on appeal, have relied on Thongvilay. Thus, we shall likewise rely, in 

part, on the opinion for our factual and procedural recitation.
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to his case because the burglary was not a crime involving danger to life. By published 

opinion filed March 12, 1998, a majority panel of this court affirmed the judgment. (Id. 

at p. 89.) 

On January 26, 2022, defendant filed a former section 1170.95 petition for 

resentencing. At the hearing on July 22, 2022, at which appointed counsel represented 

defendant, the People asked the court to deny the petition.

The People cited facts from this court’s opinion that while fleeing from a car 

burglary, defendant struck another motorist, killing her. The People contended defendant 

was the actual killer and defendant admitted he was the driver of the fleeing vehicle. 

Thus, according to the People, even though the jury found defendant guilty pursuant to 

the felony-murder rule, he was ineligible for relief because he was the actual killer.

Defense counsel responded that everything the People has said was “completely 

accurate. So at this time, all I could do is object for the record.”

The court ruled: “Based on counsel’ recitation of the circumstances surrounding 

this offense of defendant’s acknowledgment that he was the driver of the car, which 

directly resulted in the victim’s death, the Court finds the defendant is not eligible for the 

relief, and the petition is denied.”

II. DISCUSSION

Because our order of October 11, 2022, implied that we would independently 

review the record for potential errors even if defendant chose not to file a supplemental 

brief, we exercise our discretion to do so even though not required. (Delgadillo, supra, 

14 Cal.5th at p. 230 [“[I]f the appellate court wishes, it may also exercise its discretion to 
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conduct its own independent review of the record in the interest of justice.”]; id at p. 232 

[“[I]t is wholly within the court’s discretion [to] conduct[] its own independent review of 

the record in any individual section 1172.6 appeal.”] id. at p. 233, fn. 6 [“[T]he decision 

to conduct independent review is solely up to the discretion of the Courts of 

Appeal . . . .].) We find no arguable issues. 

III. DISPOSITION

The order denying defendant’s petition is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

I concur:

RAMIREZ

P. J.
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[People v. Pamot Thongvilay, E079482]

MENETREZ, J., Dissenting.

Because this is an appeal from a postjudgment order, People v. Wende (1979) 

25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 do not require us to 

read the entire record ourselves to look for arguable grounds for reversal. (People v. 

Delgadillo (2022) 14 Cal.5th 216, 228 (Delgadillo).) Because defendant’s counsel filed a 

brief raising no issues, and defendant was given an opportunity to file a personal 

supplemental brief but declined, we may dismiss the appeal as abandoned. (Id. at p. 232.)

Although we have discretion to conduct Wende review even when it is not 

required (Delgadillo, supra, 14 Cal.5th at p. 232), judicial discretion “‘is not a whimsical, 

uncontrolled power.’” (Sargon Enterprises, Inc. v. University of Southern California

(2012) 55 Cal.4th 747, 773.) “Independent review in Wende appeals consumes 

substantial judicial resources,” and “[t]he state . . . has an interest in an ‘economical and 

expeditious resolution’ of an appeal from a decision that is ‘presumptively accurate and 

just.’” (Delgadillo, at p. 229.) For these reasons, routinely conducting Wende review 

when a no-issue brief is filed in an appeal from a postjudgment order, in the absence of 

any case-specific reason to conduct such a review, would appear to be an abuse of 

discretion.

For even stronger reasons, if we can determine without reading the entire record 

that the defendant is categorically ineligible for relief, then conducting Wende review 

would appear to be an abuse of discretion. In such a case, reading every page of the 
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record to look for arguable grounds for reversal is futile, because we already know that 

the trial court’s ruling was correct. That is the case here: Defendant was convicted as the 

actual killer, so it is impossible for him to obtain relief under Penal Code section 1172.6.

Delgadillo observed that when appointed counsel files a no-issue brief and the 

court notifies the defendant of the right to file a personal supplemental brief, the notice is 

“suboptimal” if it cites Wende or does not state that the appeal may be dismissed as 

abandoned if no supplemental brief is filed. (Delgadillo, supra, 14 Cal.5th at pp. 232-

233.) But in a case like this one, any such deficiencies in the notice are harmless under 

any standard. An optimal notice would not change the fact that defendant is ineligible for 

relief.

I respectfully dissent because there is no case-specific reason to conduct Wende

review and there is a straightforward reason not to—we know without reading the entire 

record that defendant’s petition was correctly denied, so reading every page of the record 

to look for arguable grounds for reversal is pointless. The appeal should be dismissed as 

abandoned.

MENETREZ

J.