People v. Didyavong CA4/1

Filed 4/14/21 P. v. Didyavong CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D077933

Plaintiff and Respondent,

v. (Super. Ct. No. SCD142894)

BOUNTHANOM DIDYAVONG,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, John M. Thompson, Judge. Reversed and remanded with directions. Kimberly J. Grove, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.

In 2001, a jury convicted Bounthanom Didyavong of first degree

murder (Pen. Code,1 § 187, subd. (a)). Didyavong was sentenced to an indeterminate term of 25 years to life in prison. Didyavong appealed and this court affirmed the conviction in an unpublished opinion. (People v.

Didyavong (July 30, 2002, D037601) [nonpub. opn.]).2 In May 2019, Didyavong filed a pro. per. petition for resentencing under section 1170.95. The court appointed counsel, received briefing, and considered the record of conviction and this court’s previous opinion. The court concluded Didyavong had failed to state a prima facie case for relief and denied the petition by written order. Didyavong filed a timely notice of appeal. Didyavong contends the court erred in denying the petition for resentencing because the court engaged in impermissible judicial fact-finding. The Attorney General agrees the court erred and argues this court should reverse the order denying the petition and remand for further proceedings consistent with section 1170.95. After reviewing the statute and the record of the original trial, we are satisfied the parties have correctly analyzed the record and we accept the People’s concession.