People v. Phan CA3

Filed 12/8/21 P. v. Phan CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent, C092486

v. (Super. Ct. No. 02F11038)

BRUCE PHAN,

Defendant and Appellant.

A jury convicted defendant Bruce Phan of second degree murder and attempted murder and found true firearm allegations. (People v. Pham et al. (Jan. 22, 2008, C049751 [defendant & codefendant Lamson Trong Pham], C049992 [codefendant Sutter Nguyen]) [nonpub. opn.] (Pham).) The trial court sentenced him to various life terms and this court affirmed a modified judgment. (Ibid.) The Legislature subsequently enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, §§ 1-4), amending the law for felony murder and the natural and probable consequences doctrine and providing a new procedure under Penal Code

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section 1170.951 for eligible defendants to petition for recall and resentencing. The trial court denied defendant’s petition for resentencing. Defendant now contends the trial court should not have considered the record of conviction in concluding without a hearing that he failed to make a prima facie showing of entitlement to relief. The California Supreme Court recently addressed this issue, concluding that a trial court may rely on the record of conviction in determining whether a petitioner has made the single prima facie showing required under section 1170.95, subdivision (c). (People v. Lewis (2021) 11 Cal.5th 952, 970-971 (Lewis).) Accordingly, we will affirm the trial court’s order. BACKGROUND In October 2002, a Laotian family held a birthday party for a teenage girl in their Sacramento home. (Pham, supra, C049751, C049992 [p. 3].) Some of the attendees, including victim T.T., were involved in a Laotian street gang. (Ibid.) Defendant and codefendant Pham, who were Vietnamese, attended the party. (Id. [pp. 3-4].) Although there was no evidence defendant was a gang member, Pham associated with a Vietnamese street gang and codefendant Nguyen was a validated member of the same Vietnamese gang. (Ibid.) The two groups faced each other across the driveway at the residence, and the Vietnamese group asked where the Laotian group was from, which in gang parlance was indicative of a challenge to fight. (Pham, supra, C049751, C049992 [p. 4].) After one of the Laotians responded with gang initials, the Vietnamese pulled out their guns and started shooting. (Ibid.) T.T. was shot in the stomach, V.D. was shot in the hip and leg, and Khamphoumy was shot and killed. (Id. [p. 5].)