People v. Pheng CA3

Filed 1/21/25 P. v. Pheng CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C100162

Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-FE- 2005-0007218, SF095149A) v.

REACHHETRA PHENG,

Defendant and Appellant.

In 2006, the trial court sentenced defendant Reachhetra Pheng to 40 years to life. In 2023, the trial court denied defendant’s petition for resentencing filed pursuant to Penal Code section 1170, subdivision (d)(1) (statutory section citations that follow are to the Penal Code, unless otherwise stated) because defendant had not been sentenced to life without parole or its equivalent. On appeal, defendant argues his sentence was a de facto life without parole sentence and he was thus eligible for relief. We affirm the trial court’s order.

1

FACTS AND HISTORY OF THE PROCEEDINGS Defendant was 15 at the time of his offense. On February 21, 2005, defendant and several other members of his street gang ran into a member of a rival gang. Defendant, along with eight or nine other gang members, left their car and approached the rival. Defendant shot and killed him. In his defense, defendant testified someone else shot the victim. As relevant here, the jury found defendant guilty of second degree murder and found true he personally discharged a firearm causing the victim great bodily injury. (§§ 187, 12022.53, subds.(d) & (e)(1).) The trial court sentenced defendant to 15 years to life for the murder and a consecutive 25 years to life for the firearm enhancement. The trial court stayed the sentences for the multiple remaining convictions and enhancement. In 2023, defendant filed a petition seeking to have his sentence recalled and for a new sentencing hearing pursuant to section 1170, subdivision (d)(1). He did not argue his sentence amounted to a de facto life without parole sentence. The trial court denied the petition finding defendant’s sentence was not a life without parole sentence, nor its functional equivalent. Defendant filed a timely notice of appeal.