People v. Fong CA3

Filed 8/5/24 P. v. Fong CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C099348

Plaintiff and Respondent, (Super. Ct. No. 12F01615)

v.

WENDY FONG,

Defendant and Appellant.

Defendant Wendy Fong1 appeals the trial court’s denial of her Penal Code2 section 1172.63 petition at the prima facie stage after concluding she was ineligible for relief as a

1 Defendant’s name appears different ways throughout the record. The abstract of judgment lists “Wendy Fong-Jeffries,” while the notice of appeal and order denying the petition for resentencing use “Wendy Fong.” We use the latter name in this opinion. 2 Further undesignated statutory references are to the Penal Code. 3 Effective June 30, 2022, former section 1170.95 was recodified without substantive change to section 1172.6. (Stats. 2022, ch. 58, § 10.) Defendant filed her

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matter of law because the jury necessarily found she was either a direct perpetrator or a direct aider and abettor who acted with an intent to kill. Defendant’s appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Delgadillo (2022) 14 Cal.5th 216, notifying this court that counsel had found no arguable issues on appeal and requesting, pursuant to Delgadillo, that we permit defendant to file a supplemental brief raising any argument she wishes this court to consider. Defendant filed a supplemental brief arguing: (1) the trial court failed to independently review the facts to determine the sufficiency of the evidence to support her convictions; (2) insufficient evidence supported the jury’s true finding on the lying-in- wait special circumstance; (3) the court misapplied People v. Lewis (2021) 11 Cal.5th 952 (Lewis); and (4) the uncharged conspiracy instructions given at trial were virtually indistinguishable to instructions on the natural and probable consequences doctrine thereby entitling her to relief. Having considered defendant’s supplemental brief in accordance with Delgadillo, we affirm. FACTUAL AND PROCEDURAL BACKGROUND According to the prosecution’s theory of this case, in March 2012 the victim was lured by two acquaintances, codefendants Andrew Jeffries and Robert Haven, to a secluded location under the guise of stealing a car together; “Jefferies and/or Haven shot [the victim] in the back and head, killing him.”4 (See People v. Haven et al., supra, C074940.) Defendant, Jeffries’s wife, was implicated in the plot to kill the victim. (Ibid.)