People v. Viengvilai CA1/2

Filed 2/16/21 P. v. Viengvilai CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A158269 v. PLAO VIENGVILAI, (Contra Costa County Super. Ct. No. 59101361) Defendant and Appellant.

Plao Viengvilai appeals from denial of the petition he filed in propria persona to recall and vacate his conviction under Penal Code section 1170.95.1 His petition asserts he had been convicted of murder in the second degree under the felony murder rule or the natural and probable consequences doctrine, and therefore could no longer be held liable due to recent amendments to sections 188 and 189. (Stats. 2018, ch. 1015, §§ 2–4.) Appellant’s court-appointed counsel has filed a brief raising no legal issues and asking this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel declares that she advised appellant she will be filing a brief pursuant to the procedures prescribed in

All statutory references are to the Penal Code unless otherwise 1

indicated.

1

Wende, provided appellant a copy of that brief, and advised appellant that he may request this court to relieve her as counsel.2 This appeal is authorized by section 1237, subdivision (b) and rule 8.304 of the California Rules of Court. FACTS AND PROCEEDINGS BELOW On April 29, 1991, appellant was convicted of murder in the second degree (§ 187, subd. (a)) and the jury found he personally used a firearm in the commission of the offense. (§ 12022.5.) In July 1992, we issued an unpublished opinion affirming appellant’s conviction. (People v Viengvilai (July 24, 1992, A053566) (Viengvilai).) In the present proceeding, Contra Costa Superior Court Judge John W. Kennedy took judicial notice of our prior opinion. (Evid. Code, § 452; Cal. Rules of Ct., rule 8.1115(b).) As stated in People v. Brimmer (2014) 230 Cal.App.4th 782, 800, the “court’s unpublished opinion in defendant’s prior underlying appeal is sufficient evidence of the record of conviction.” In his order denying appellant’s petition for resentencing, Judge Kennedy paraphrased the portion of our opinion describing the facts of appellant’s 1991 offense, as follows: “Viengvilai and his fellow gang members sought revenge against an Oakland gang for a perceived wrong done to a Richmond cohort. Viengvilai loudly stated, ‘Let’s go shoot some Oakland people.’ He brought along a gun, a 22 with a sawed-off barrel, under his trench coat as he and his Richmond