Filed 5/5/22 P. v. Xiong CA5

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

YENG XIONG,

Defendant and Appellant.

F079367

(Super. Ct. No. SUF16461B)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Merced County. Mark V. 

Bacciarini, Judge.

Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief 

Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric 

Christoffersen, Louis M. Vasquez, Lewis A. Martinez, Christina Simpson, and 

Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

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

INTRODUCTION

Defendant Yeng Xiong was convicted of attempted murder and discharging a 

firearm at an occupied motor vehicle. Following the passage of Senate Bill No. 1437

(2017–2018 Reg. Sess.) (Senate Bill 1437), defendant filed a petition for resentencing 

pursuant to Penal Code section 1170.95, asserting he was entitled to resentencing under 

the new laws. (Undesignated statutory references are to the Penal Code.) The court 

denied defendant’s petition, concluding he was categorically ineligible for relief because 

he was not convicted of murder under the felony-murder rule or the natural and probable 

consequences doctrine. Defendant appealed the denial of his petition and we previously 

affirmed the trial court’s order, concluding defendant was ineligible for relief from his 

attempted murder conviction because the plain language of section 1170.95, subdivision 

(a) limited relief to persons convicted of felony murder or murder under a natural and 

probable consequences theory.

Defendant petitioned for review. The California Supreme Court granted and held 

the petition and deferred action pending its consideration and disposition in People v. 

Lopez, S258175. It then transferred the case back to us with directions for our court to 

vacate our decision and reconsider the cause in light of Senate Bill No. 775 (2021–2022 

Reg. Sess.) (Senate Bill 775) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis). 

Defendant now argues he is entitled to relief from his attempted murder conviction in 

light of the developments in the law. The People disagree, arguing defendant’s petition 

was properly denied because he was convicted under a still valid theory.

We reverse the trial court’s order and remand for further proceedings consistent 

with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

In 1992, a jury convicted defendant of attempted murder (§§ 664, 187) and 

discharging a firearm at an occupied vehicle (§ 246). The jury also found true an 
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allegation that defendant was armed with a firearm during the commission of the 

attempted murder.1

In 2019, defendant petitioned the court for resentencing pursuant to section 

1170.95. He attached a declaration in which he stated a charging document had been 

filed against him allowing the prosecution to proceed under a theory of premeditated 

attempted murder under the natural and probable consequences doctrine; at trial, he was 

convicted of premeditated attempted murder pursuant to the natural and probable 

consequences doctrine; and he could not now be convicted of premeditated attempted 

murder in light of changes made to sections 188 and 189, effective January 1, 2019

(pursuant to Senate Bill 1437) because he “was the driver and not the actual shooter,” and 

the “perpetrator was never convicted.” He also requested the court appoint counsel for 

him during the resentencing process.

The court denied defendant’s petition, reasoning he “was not convicted of murder. 

He was convicted of attempted murder. As such, his conviction does not qualify under 

the new law.”

DISCUSSION

Defendant challenges the denial of his petition for resentencing. We reverse the 

court’s denial order and remand the matter to the trial court with directions that it appoint 

defendant counsel, issue an order to show cause, and hold an evidentiary hearing in 

accordance with subdivision (d) of section 1170.95.

I. Senate Bill 1437 and Senate Bill 775

On September 30, 2018, the Governor signed Senate Bill 1437, which became 

effective on January 1, 2019. Senate Bill 1437 “amend[s] the felony murder rule and the 

natural and probable consequences doctrine, as it relates to murder, to ensure that murder 

1We previously granted the People’s motion asking that we take judicial notice of our 

prior unpublished opinion in this matter pursuant to Evidence Code sections 452, subdivision (a),

and 459, subdivision (a).
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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).) It amends section 

188, which defines malice, and section 189, which defines the degrees of murder to 

address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2–3.)

Accordingly, section 188 now provides that, “[e]xcept as stated in subdivision (e) 

of Section 189, in order to be convicted of murder, a principal in a crime shall act with 

malice aforethought. Malice shall not be imputed to a person based solely on his or her 

participation in a crime.” (§ 188, subd. (a)(3), italics added.) The change reflects the 

Legislature’s intent that “[a] person’s culpability for murder must be premised upon that 

person’s own actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)

Additionally, section 189 previously stated, “All murder ... which is committed in 

the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, 

mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 

288a, or 289, or any murder which is perpetrated by means of discharging a firearm from 

a motor vehicle, intentionally at another person outside of the vehicle with the intent to 

inflict death, is murder of the first degree.” Senate Bill 1437 amended section 189, in 

part, by adding subdivision (e) which provides:

“A participant in the perpetration or attempted perpetration of a felony 

listed in subdivision (a) 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.”

The legislation also added section 1170.95, which provides a procedure by which 

defendants whose cases are final can seek retroactive relief if the changes in the law 
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would affect their previously sustained convictions. (Stats. 2018, ch. 1015, § 4.) 

Initially, section 1170.95 permitted those “convicted of felony murder or murder under a 

natural and probable consequences theory [to] file a petition with the court that sentenced 

the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on 

any remaining counts ....” (Stats. 2018, ch. 1015, § 4, subd. (a).)

Pursuant to Senate Bill 775, effective January 1, 2022, the Legislature amended 

the language of section 1170.95 to expand the scope of the petitioning procedure in part 

to defendants convicted of “attempted murder ... under ... the natural probable 

consequences doctrine.” (Stats. 2021, ch. 551, § 1, subd. (a).) The legislation also 

clarified some of the procedural requirements in the statute.

Pursuant to amended section 1170.95, upon receiving a petition, if the petitioner 

has requested counsel, the court must appoint counsel to represent the petitioner. 

(§ 1170.95, subd. (b)(3).) “After the parties have had an opportunity to submit briefings, 

the court shall hold a hearing to determine whether the petitioner has made a prima facie 

case for relief.” (§ 1170.95, subd. (c).) If the petitioner has made such a showing that the 

petitioner is entitled to relief, the court “shall issue an order to show cause.” (Ibid.) “If 

the court declines to make an order to show cause, it shall provide a statement fully 

setting forth its reasons for doing so.” (Ibid.)

Within 60 days after the order to show cause has issued, the trial court must then 

hold a hearing “to determine whether to vacate the murder, attempted murder, or 

manslaughter 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.” 

(§ 1170.95, subd. (d)(1).) At the hearing. the burden of proof is on the prosecution to 

prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted 

murder under the amended laws. (§ 1170.95, subd. (d)(3).)
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The admission of evidence at the evidentiary hearing “shall be governed by the 

Evidence Code, except that the court 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. The court may also consider the 

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

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

meet their respective burdens.” (Ibid.) “If the prosecution fails to sustain its burden of 

proof, the prior conviction, and any allegations and enhancements attached to the 

conviction, shall be vacated and the petitioner shall be resentenced on the remaining 

charges.” (Ibid.)

II. Analysis

In the initial appeal from the denial of his section 1170.95 petition, defendant 

argued the petitioning procedure provided for in former section 1170.95 should be 

extended to defendants convicted of attempted murder based on the natural and probable 

consequences doctrine. He also argued he had the right to be personally present and 

represented by counsel at a hearing on his petition. In our initial opinion, we rejected 

defendant’s arguments and concluded he was categorically ineligible for relief from his

attempted murder conviction based on the plain language of former section 1170.95.

Following the California Supreme Court’s transfer of this case back to our court, 

defendant now asserts Senate Bill 775 was an ameliorative change in the law that should 

apply retroactively. He argues his petition was facially valid and the record of conviction 

did not show he was ineligible for relief as a matter of law. Accordingly, he contends the 

matter should be remanded and the trial court should be directed to issue an order to show 

cause under section 1170.95, subdivision (c), and to hold an evidentiary hearing. The 

People concede Senate Bill 775 applies retroactively, but they respond the record 

establishes defendant was convicted of attempted murder under a still valid theory. They 
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concede the jury was instructed on the natural and probable consequences doctrine, but 

they assert defendant was necessarily convicted as a direct aider and abettor. They argue

“the record shows that the prosecutor relied on a direct aiding and abetting theory of 

liability, and not a natural and probable consequences theory of liability,” citing to the 

prosecutor’s closing argument. They also argue the jury “determined that [defendant] 

committed first degree attempted murder” and that the offense was “‘willful, deliberate 

and premeditated.’” They further contend defendant’s codefendant was not convicted of 

attempted murder, so the jury could not have convicted defendant based on an imputed 

mental state without finding defendant personally harbored the necessary intent. 

Accordingly, they argue any error in the trial court’s failure to appoint defendant counsel 

before denying his petition was, thus, harmless because he is ineligible for relief.2 We

agree with defendant the record does not rebut the allegations in his petition and establish 

he is ineligible for relief as a matter of law. Accordingly, we reverse the court’s order 

denying the petition and remand for further proceedings.

Following the issuance of our initial opinion, the California Supreme Court issued 

its decision in Lewis in which it condoned the trial court’s use of the record of conviction 

in concluding whether a defendant has made a prima facie showing of eligibility for relief 

under section 1170.95. (Lewis, supra, 11 Cal.5th at p. 971 [“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 

2

In a separate motion, the People ask us to take judicial notice of the clerk’s transcript 

and volume two of the reporter’s transcript from defendant’s trial. Defendant filed a separate 

motion asking our court to vacate submission of the cause to allow him an opportunity to file a 

reply brief and to respond to the request for judicial notice or, alternatively to deny the request 

for judicial notice. Because it is not necessary to take judicial notice of the referenced 

documents in rendering our disposition on appeal, we deny the People’s request for judicial 

notice. (See People v. Young (2005) 34 Cal.4th 1149, 1171, fn. 3 [court may not take judicial

notice of any matter that is irrelevant].) Accordingly, we also deny as moot the defendant’s 

motion to vacate submission and to allow him to file a supplemental reply brief or, alternatively, 

deny respondent’s request for judicial notice.
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meritless”].) The Lewis court cautioned that the prima facie inquiry under subdivision (c) 

of section 1170.95 is “limited,” and “‘[a] court should not reject the petitioner’s factual 

allegations on credibility grounds without first conducting an evidentiary hearing.’” 

“‘However, if the record including the court’s own documents, “contain[s] facts refuting 

the allegations made in the petition,” then “the court is justified in making a credibility 

determination adverse to the petitioner.”’” (Lewis, at p. 971.) The Lewis court also held, 

a petitioner “‘whose petition is denied before an order to show cause issues has the 

burden of showing “it is reasonably probable that if [he or she] had been afforded 

assistance of counsel his [or her] petition would not have been summarily denied without 

an evidentiary hearing.”’” (Id. at p. 974.)

Here, defendant filed a facially valid petition for relief under the current version of 

section 1170.95. And, contrary to the People’s argument, we cannot conclude the record 

of conviction establishes defendant is ineligible for relief from his attempted murder 

conviction as a matter of law. First, that the jury concluded the attempted murder was 

willful, deliberate, and premeditated does not, on its own, establish defendant could not 

have been convicted under the natural and probable consequences doctrine. (See People 

v. Favor (2012) 54 Cal.4th 868, 879 [“Because section 664(a) ‘requires only that the 

attempted murder itself was willful, deliberate, and premeditated’ [citation], it is only 

necessary that the attempted murder ‘be committed by one of the perpetrators with the 

requisite state of mind’”].) And even if we were to assume, arguendo, the prosecutor’s 

closing argument is a part of the record of conviction that may appropriately be relied 

upon at the prima facie stage, it is undisputed the jury in defendant’s case was instructed 

on the natural and probable consequences doctrine. Thus, they could have convicted 

defendant under this theory regardless of whether the prosecutor emphasized it in 

argument. (See People v. Perez (1992) 2 Cal.4th 1117, 1126 [“It is elementary ... that 

the prosecutor’s argument is not evidence and the theories suggested are not the exclusive 

theories that may be considered by the jury”].) And the record of conviction does not 
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establish, as a matter of law, that the jury convicted defendant as a direct aider and 

abettor who acted with the intent to kill.

Furthermore, the jury’s failure to convict codefendant Seng Lor of attempted 

murder does not compel the conclusion the jury necessarily found defendant was 

convicted as a direct aider and abettor who acted with the intent to kill. “The law 

generally accepts inconsistent verdicts as an occasionally inevitable, if not entirely 

satisfying, consequence of a criminal justice system that gives defendants the benefit of a 

reasonable doubt as to guilt, and juries the power to acquit whatever the evidence.” 

(People v. Palmer (2001) 24 Cal.4th 856, 860.) At this preliminary stage of the process, 

we cannot infer from the verdict as to Lor that the jury accepted any given theory of guilt 

as to defendant.

Rather, because defendant has made a prima facie showing he is entitled to relief 

under section 1170.95, and the record of conviction does not show him to be ineligible as 

a matter of law, the trial court's summary denial of his petition must be reversed. (Lewis,

supra, 11 Cal.5th at pp. 971–972.) The matter is therefore remanded to the trial court 

with directions that it appoint defendant counsel, issue an order to show cause, and hold 

an evidentiary hearing in accordance with subdivision (d) of section 1170.95.

DISPOSITION

The court’s order denying defendant’s section 1170.95 petition for resentencing is 

reversed and the matter is remanded for further proceedings consistent with this opinion.