Filed 5/16/23 P. v. Yang 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

KER YANG,

Defendant and Appellant.

F085030

(Super. Ct. No. F20901012)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. F. Brian 

Alvarez, Judge.

William J. Capriola, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and 

Respondent.

-ooOoo-

* Before Hill, P. J., Franson, J. and Peña, J.
2.

Defendant Ker Yang was convicted in 2020 of sexual penetration by force of 

Jane Doe I, a child under the age of 14 years (§ 289, subd. (a)(1)(B));1sexual penetration 

of Jane Doe I, a child under 10 years of age or younger (§ 288.7, subd. (b); and lewd 

conduct with Jane Doe II, a 14- or 15-year-old child (§ 288, subd. (c)(1)). The sentence 

was subsequently vacated by this court in People v. Yang (June 30, 2022, F081990 

[nonpub. opn.]) (Yang I) and the trial court was directed to resentence defendant in 

compliance with section 1170, subdivision (b), as amended by Senate Bill No. 567 

(2021–2022 Reg. Sess.). Following a remand for resentencing, defendant was 

resentenced by the trial court. 

Appointed counsel for defendant asks this court to review the record to determine 

whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436

(Wende).) Defendant was advised of his right to file a letter stating any grounds on 

appeal within 30 days of the date of filing of the opening brief. Defendant filed a letter 

contending that his attorney rendered ineffective assistance of counsel. Because the 

judgment was reversed only as to sentencing and to amend the terms of the nonvisitation 

order, only errors relating to those issues may be considered in this subsequent appeal. 

He has identified no basis for relief, nor have we. We affirm.

PROCEDURAL SUMMARY2

On February 26, 2020, the Fresno County District Attorney filed an information

charging defendant with continuous sexual abuse of Jane Doe I, a child under the age of

14 years (§ 288.5, subd. (a); count 1); sexual penetration by force of Jane Doe I, a child 

under the age of 14 years (§ 289, subd. (a)(1)(B); count 2); oral copulation or sexual 

penetration of Jane Doe I, a child 10 years of age or younger (§ 288.7, subd. (b); count 3); 

1 All further undesignated statutory references are to the Penal Code.

2 We take judicial notice of our prior opinion in Yang I, supra, F081990. 

(Evid. Code, §§ 452, subd. (d), 459, subds. (a)–(c).) 
3.

and lewd conduct upon Jane Doe II, a 14- or 15-year-old child (§ 288, subd. (c)(1); 

count 4).3 

On October 1, 2020, a jury found defendant guilty on all three counts.

On October 30, 2020, the trial court sentenced defendant to a term of 12 years

8 months, plus 15 years to life in prison as follows: 12 years (the upper term), on

count 1; an indeterminate term of 15 years to life, consecutive, on count 2; and

8 months (one-third the middle term), consecutive, on count 3. A nonvisitation order was 

also issued against defendant ordering no visitation between defendant and Jane Doe I 

and Jane Doe II. 

Also on October 30, 2020, defendant filed a notice of appeal.

On June 30, 2022, this court issued its opinion in Yang I, supra, F081990, vacating 

defendant’s sentence and remanding the matter for resentencing in light of amended 

section 1170, subdivision (b). (Yang I, supra, F081990, at p. 2.) This court also 

instructed the trial court to amend the nonvisitation order to reflect that it applies only to 

Jane Doe I (post, fn. 6), and that it terminates on Jane Doe I’s birthday. (Ibid.) In all 

other respects, the trial court’s judgment was affirmed. (Ibid.) 

On August 30, 2022, this court issued a remittitur. 

On September 29, 2022, the trial court resentenced defendant to a new term of 

10 years 8 months on counts 1 and 3, consecutive, plus 15 years to life on count 2. On 

the same date, defendant filed a notice of appeal from resentencing. 

On February 22, 2023, defendant filed a Wende brief (Wende, supra, 25 Cal.3d 

436), requesting this court review the record to determine whether there are any arguable 

3 On September 18, 2020, continuous sexual abuse of Jane Doe I, a child under the 

age of 14 years (§ 288.5, subd. (a)), originally count 1, was dismissed at the request of the 

prosecutor, and the remaining three charges, counts 2, 3, and 4, were respectively 

renumbered 1, 2, and 3. 
4.

issues on appeal. That same day, defendant was advised of his right to file a letter stating 

any grounds on appeal within 30 days of the date of filing of the opening brief. 

On March 10, 2023, defendant filed a letter contending both defense counsel and 

appellate counsel rendered ineffective assistance of counsel. 

FACTUAL SUMMARY4

“Defendant’s wife, Payao, has four younger sisters, L.V.,[5] S.V., G.V., and A.V.[6] 

When Payao’s sisters were elementary, middle and high school age, they would

frequently babysit defendant and Payao’s young children. 

“Payao’s youngest sister, A.V., started helping babysit defendant’s children when

she was in kindergarten. A.V. frequently spent the night at defendant’s house after

babysitting the children.

“When A.V. was in kindergarten, defendant started coming into the bedroom 

while she slept and would touch her breast area and rub her vagina. His conduct 

escalated to digital penetration of A.V. ‘[w]henever he got the chance’—more than 

30 times—from the time she was in first grade until she was in seventh grade. Defendant 

also began to rape A.V. while she was in elementary school. A.V. would awake to 

defendant touching her breasts and vagina before he inserted his penis into her vagina. 

She always pushed him away and told him to stop but he would not. This happened 

‘[t]oo many [times] to count,’ but more than 20 or 30 times. When she would refuse to 

go in the bedroom with him while she was babysitting, he would force her, despite his 

own children sometimes trying to stop him and keep the door open. Defendant’s minor 

son testified at trial that on one occasion he was able to jimmy the bedroom door lock and 

4 Our factual summary is drawn from the statement of facts presented in this court’s 

opinion, Yang I, supra, F081990, on defendant’s direct appeal.

5 L.V. is named as “Jane Doe II” in the information. 

6 A.V. is named as “Jane Doe I” in the information. 
5.

open it enough to witness defendant on top of A.V., covering her mouth and trying to 

remove her clothes while A.V. struggled and tried to push defendant away. A.V. moved 

out of town for her seventh grade school year, but upon her return the following year, 

defendant again raped and assaulted her. She never told her parents or Payao because she 

was scared, worried about her family, and did not want to cause trouble.

“Defendant also sexually molested L.V. while she was a young teenager

babysitting his children. When she was approximately 14 years old, she awoke to one of 

defendant’s hands under her shirt squeezing her breasts. She pretended to be asleep, 

hoping he would stop, but instead, he began rubbing her vagina over her underwear. He 

eventually stopped when she turned her body away from him. On another occasion, she 

awoke when one of her other sisters, S.V., who was sleeping in the same room as L.V., 

woke up and saw defendant about to touch L.V. as she was sleeping and asked defendant, 

‘ “What the hell are you doing?” ’ He told the girls he was not doing anything and left 

the room. 

“In August 2018, defendant’s minor son told his mother, Payao, that defendant 

had ‘S-E-X to [A.V.].’ He had told her this once the year prior, but she had dismissed it

when she confronted defendant and he claimed their son was lying. However, after their

son’s August 2018 disclosure, Payao called her sister, L.V., who was with A.V. at the

time, and asked A.V. if defendant had had sex with her. A.V., who was [13] years old at 

the time, initially said nothing, but started crying and eventually admitted that defendant 

had sexually assaulted her. Payao then confronted defendant, who admitted having sex 

with A.V. Later that day, L.V. and A.V. went to Payao and defendant’s house, and A.V. 

told Payao that defendant had been sexually assaulting her and raping her for as long as 

she could remember. L.V. was extremely upset and called 911 to report that defendant 

had molested A.V. After interviewing L.V., A.V., Payao, and defendant, defendant was 

transported to the Fresno [p]olice headquarters, where he was interviewed by detectives 

and placed under arrest. During his interview by police, defendant admitted that he made 
6.

a ‘mistake’ by having sexual intercourse with A.V. and sexually assaulting G.V. on 

numerous occasions, but denied touching S.V. and L.V. and denied having sexual 

intercourse with anyone other than A.V.

“During a break in the interview, defendant wrote a letter to Payao apologizing 

and telling her he still loved her, which he crumpled up. He then wrote her another letter 

in which he asked Payao to be strong and admitted he had not been a good father or

husband, that he ‘wish[ed] that this never had happened so [they could] still be a family,’

and that he wanted to fix his mistake so he could watch his kids grow up. In the second

letter, he addressed Payao’s sisters, A.V., L.V., S.V., and G.V., writing that he was sorry

for his ‘mistake’ and asked for their understanding and forgiveness.

“A.V. and L.V. testified to the events discussed above at trial. S.V. and Payao’s

brother’s wife, C.Y., also testified at trial that defendant touched their breasts while they

were sleeping on various occasions when they were between the ages of 11 and 20 years

old, and Payao testified that she witnessed defendant touch her sister G.V.’s breasts while

she was sleeping also.” (Yang I, supra, F081990.)

DISCUSSION

Wende Review

This is an appeal from the trial court’s resentencing of defendant. For that reason, 

this appeal has a limited scope. We have already issued a comprehensive opinion in 

Yang I, which addressed the issues raised by defendant in his direct appeal of his 

conviction for the underlying crimes. (Yang I, supra, F081990.) 

As noted above, defendant’s appellate counsel filed a brief pursuant to Wende, 

supra, 25 Cal.3d 436, asserting he could not identify any arguable issues in this case. 

After defendant’s appellate counsel filed his Wende brief, by letter dated February 22, 

2023, we invited defendant to inform this court of any issues he wished addressed. On 

March 10, 2023, defendant responded to our letter, alleging that he was entitled to relief 

because defense counsel rendered ineffective assistance of counsel in his underlying trial, 
7.

and appellate counsel rendered ineffective assistance in his direct appeal by failing to 

raise the issue of defense counsel’s ineffective assistance at trial. 

Claims of ineffective assistance in his underlying criminal trial, however, may not 

be raised in this appeal. In Yang I, we affirmed the convictions and only remanded for 

the limited purpose of resentencing under amended section 1170, subdivision (b) and to 

amend the terms of the nonvisitation order. (Yang I, supra, F081990, at p. 2.) The 

judgment was affirmed “[i]n all other respects.” (Ibid.) 

Questions determined by an intermediate appellate court constitute the law of the 

case after the decision becomes final. In the absence of exceptional circumstances of 

hardship and injustice, the need for attributing finality to considered judicial 

determinations compels adherence to the previous decision. (Gore v. Bingaman (1942) 

20 Cal.2d 118, 122–123.) Thus, only errors relating to the resentencing or amendments 

to the nonvisitation order on remand “may be considered in this subsequent appeal.” 

(People v. Deere (1991) 53 Cal.3d 705, 713 [rejecting claim of ineffective assistance of 

counsel in the guilt phase in subsequent appeal from limited remand on penalty phase].) 

We have reviewed the record on this limited appeal for any arguable issues. We 

find there are none. Here, defendant’s claim of ineffective assistance of defense counsel

relates to alleged error in his underlying criminal trial, but this appeal is not an 

opportunity to reargue issues about the criminal trial that were already raised in Yang I, or 

to raise new arguments that could have been raised in Yang I. Nor is this limited appeal 

an opportunity to argue that our conclusions in Yang I were in error. Our decision in 

Yang I is final. Defendant’s claim relates to perceived errors in the criminal trial, but 

such claims cannot be raised in this appeal.7

7 To the extent defendant wishes to challenge the adequacy of the legal 

representation he received in his direct appeal, that appellate counsel rendered ineffective 

assistance by failing to raise the issue of defense counsel’s ineffective assistance at trial, 

this subsequent appeal of the resentencing on remand is not the appropriate vehicle for 
8.

After a thorough review of the record, we conclude there are no arguable issues in 

this case. There is nothing in this record to suggest any error occurred.

DISPOSITION

The judgment is affirmed.

raising that claim; such a claim should be raised in a petition for writ of habeas corpus. 

(See People v. Carrasco (2014) 59 Cal.4th 924, 980–981; People v. Mendoza Tello

(1997) 15 Cal.4th 264, 266–267.)