People v. Hoong CA3

Filed 11/29/21 P. v. Hoong CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C093483

Plaintiff and Respondent, (Super. Ct. No. 03F08566)

v.

TONY HOONG,

Defendant and Appellant.

Defendant Tony Hoong appeals the trial court’s denial of his Penal Code section 1170.95 resentencing petition. 1 He contends the trial court erred in concluding that defendant failed to make a prima facie case for relief based on its finding that the evidence in the record would be sufficient to support a murder conviction under the enacting legislation, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015,

1 Undesignated statutory references are to the Penal Code.

1

§ 4). The Attorney General concedes the issue and asks this court to reverse the trial court’s erroneous order and remand the matter for proceedings consistent with section 1170.95. We accept the People’s concession and will reverse the order and remand. PROCEDURAL BACKGROUND In 2005, a jury found defendant and his codefendant guilty of first degree murder with related gang and firearm enhancements (§§ 187, subd. (a), 186.22, subd. (b)(1), 12022.53, subds. (d), (e)). On direct appeal, this court affirmed defendant’s murder conviction but struck the enhancements. The facts underlying the conviction are not relevant to our disposition on appeal and are therefore not recounted here. On November 5, 2019, this court held in an unpublished opinion that defendant was entitled to habeas relief on his first degree murder conviction. (In re Hoong (Nov. 5, 2019, C085638) [nonpub. opn.].) Relief was required because this court could not determine beyond a reasonable doubt that the jury in defendant’s case did not rely on the natural and probable consequences doctrine to find defendant guilty of first degree murder. The first degree murder conviction was vacated and the matter remanded “to the trial court with directions to allow the People to accept a reduction of the conviction to second degree murder, or to elect to retry [defendant] for first degree murder under a theory or theories other than natural and probable consequences.” (In re Hoong, supra, C085638.) On July 29, 2020, defendant was resentenced on one count of second degree murder to a total term of 15 years to life. In March 2020, defendant filed a petition for resentencing under newly enacted section 1170.95. The court then appointed counsel for defendant, and both parties subsequently submitted briefing on the applicability of section 1170.95. The trial court issued a written order denying resentencing, observing that this court “had concluded, in the original appellate opinion, that the evidence was sufficient for a jury to have convicted defendant [ ] of first degree murder, based on direct aiding and abetting a first degree murder, a theory that has survived [Senate Bill No.] 1437.” The court then