People v. Cao CA4/3

Filed 10/21/24 P. v. Cao 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G062432

v. (Super. Ct. No. 93CF2314)

PHAT NGUYEN CAO, OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Andre Manssourian, Judge. Affirmed. Heather Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Defendant Phat Nguyen Cao appeals from the trial court’s denial of his petition for resentencing under former Penal Code section 1170.951 following a hearing on the merits of his petition. The trial court concluded Cao was ineligible for resentencing because he had committed murder under the provocative act doctrine. Cao contends there was insufficient evidence to conclude that he committed provocative act murder, but we conclude substantial evidence supports the court’s finding. Accordingly, we affirm the order denying the petition. STATEMENT OF FACTS AND PROCEDURAL HISTORY I. CHARGES AND GUILTY PLEA In 1994, Cao, along with Tam Van Nguyen, was charged with the murder of the victim (§ 187, subd. (a); count one) and street terrorism (§ 186.22, subd. (a); count two). It was further alleged that both defendants were vicariously armed with a firearm and knew that another principal was personally armed (§ 12022, subd. (a)(1)) and that the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Cao pleaded guilty. The factual basis for his plea was set forth on the Tahl form as follows: “On 8-6-93 in Orange County I willfully and unlawfully entered a gunfight after lying in wait for my opponent, Doi Phung, knowing my actions would cause Doi Phung to use lethal force in response to my actions, causing Doi Phung to shoot and kill a person while attempting to shoot me. I did this crime for the benefit of Nip Family, a criminal street