People v. Le CA3

Filed 12/13/21 P. v. Le CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C093471

Plaintiff and Respondent, (Super. Ct. No. 97F04934)

v.

VIET KIM LE,

Defendant and Appellant.

Defendant Viet Kim Le appeals from the trial court’s order denying his propria persona petition for resentencing brought pursuant to Penal Code section 1170.95. 1 Defendant contends the trial court erred by relying on a special circumstance finding to conclude no prima facie showing had been made. We disagree and affirm the order.

1 Further undesignated statutory references are to the Penal Code.

1

FACTS AND PROCEEDINGS Defendant’s Convictions In our opinion on direct appeal, we summarized the incident leading to defendant’s convictions. (People v. Le (Oct. 29, 2003, C041716) [nonpub. opn.].)2 In 1997, Melinda Vo was driving a car in which Thanh La was the passenger. A car driven by defendant began following close behind the car driven by Vo. Eventually, defendant’s car pulled up to Vo’s car, and five or six gunshots rang out. Vo was shot and died. La later explained to police officers that defendant was Vo’s boyfriend. In 2001, a jury found defendant guilty of murder (§ 187, subd. (a); count one) and attempted murder (§§ 187, subd. (a), 664). As to count one, the jury found true a special circumstance allegation that the murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle with the intent to inflict death. (§ 190.2, subd. (a)(21).) As to both counts, the jury found that defendant was armed with a firearm. (§ 12022, subd. (a).) The trial court sentenced defendant to life without the possibility of parole for the murder of Vo and to a consecutive term of seven years for the attempted murder of La. The court also imposed two one-year sentences for the firearm enhancements. This court affirmed the judgment on direct appeal. Legal Background Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437), which became effective on January 1, 2019, was enacted “to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that