People v. Vo CA4/3

Filed 5/25/21 P. v. Vo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G059205

v. (Super. Ct. No. 98NF0842)

HUNG LE VO, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Gregg L. Prickett, Judge. Reversed and remanded with directions. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Hung Le Vo appeals from an order denying his petition for 1 resentencing under Penal Code section 1170.95. The court denied the petition on the ground that Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1013, §4) (Senate Bill 1437), the legislation enacting section 1170.95, unconstitutionally amends two voter-approved initiatives. We disagree. The order is reversed, and the matter is remanded for further proceedings on the merits of defendant’s petition. FACTS In 2001, a jury convicted defendant of first degree murder (§ 187, subd. (a); count 1), conspiracy to commit robbery (§ 182(1); count 2), three counts of attempted second degree robbery (§§ 664, 211; counts 3-5), second degree burglary (§§ 459, 460; count 6), and assault with a deadly weapon (§ 245, subd. (a)(1); count 7). The jury also found true allegations that defendant was armed with a firearm in the commission of counts 1 through 5 and 7 (§ 12022, subd. (a)(1)). The court sentenced defendant to 50 years to life, plus six years for count 7 and a consecutive one-year sentence for the firearm enhancement on count 7. Another panel of this court affirmed the judgment in 2004. (People v. Laem (Feb. 24, 2004, G031167) [nonpub. opn.].) In 2019, defendant filed a petition seeking resentencing pursuant to section 1170.95. The People opposed and argued Senate Bill 1437 was unconstitutional and defendant was ineligible for resentencing. The court appointed counsel for defendant who filed a reply brief arguing Senate Bill 1437 was constitutional. The court denied defendant’s petition and found Senate Bill 1437 unconstitutionally amended 1978’s Proposition 7 and 1990’s Proposition 115. The court accordingly “decline[d] to give enforcement to this section, SB 1437” but did not rule on the merits of defendant’s eligibility for resentencing. Defendant filed a motion for reconsideration, and the case was “closed” in January 2020. 1 All further statutory references are to the Penal Code.