People v. Phim CA5

Filed 8/3/16 P. v. Phim 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F069104 Plaintiff and Respondent, (Super. Ct. No. 25626) v. OPINION VIRET PHIM,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Stanislaus County. Valli K. Israels, Judge. Michael Satris, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- INTRODUCTION In 1994, appellant Viret Phim, a 17-year-old gang member from Stockton, shot and killed two of his own confederates while they were participating in the robbery of a 14-year-old girl outside a market in Modesto.

Appellant was subsequently convicted of two counts of first degree murder, with robbery and multiple-murder special circumstances, under a theory of felony murder, as well as other offenses. The trial court sentenced him to two terms of life without the possibility of parole (LWOP) for the murders, staying the second LWOP term. This court affirmed appellant’s convictions in 1997. (People v. Phim (Nov. 20, 1997, F025275) [nonpub. opn.].) On April 8, 2013, appellant filed a petition for writ of habeas corpus in which he claimed he was entitled to resentencing on both statutory grounds pursuant to Penal Code1 section 1170, subdivision (d)(2) (hereafter § 1170(d)(2)), and on federal constitutional grounds pursuant to Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455] (Miller). On June 14, 2013, the trial court issued written orders denying, without prejudice, appellant’s petition for writ of habeas corpus with respect to his Miller-based constitutional claims, and setting the matter for hearing solely as a petition for recall and resentencing pursuant to section 1170(d)(2). After a hearing on February 28, 2014, the trial court denied the petition for recall and resentencing, essentially concluding that, although appellant had made commendable progress in his postconviction rehabilitation efforts in prison, he had not demonstrated sufficient progress to justify resentencing under the factors enumerated in section 1170(d)(2). On appeal, appellant contends the trial court abused its discretion in determining that he was not entitled to resentencing under section 1170(d)(2). Among other things, he argues that the court abused its discretion by failing to consider the juvenile LWOP sentencing considerations established by Miller (the so-called “Miller factors”).