People v. Lam CA3

Filed 1/25/22 P. v. Lam CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C093413

Plaintiff and Respondent, (Super. Ct. No. 04F00144)

v.

CHAN VENH LAM,

Defendant and Appellant.

Defendant Chan Venh (John) Lam appeals from the trial court’s order denying his petition for resentencing under Penal Code section 1170.95. 1 Defendant contends the trial court erred in finding he did not make a prima facie case for relief after it conducted a flawed factual inquiry by reviewing the record of conviction under an incorrect standard of review. He argues the trial court should have issued an order to show cause

1 Undesignated statutory references are to the Penal Code.

1

and allowed the petition to proceed for full consideration on its merits. We agree the trial court erred in denying defendant’s petition and will remand the case for further proceedings. PROCEDURAL BACKGROUND Defendant, along with codefendants Hung Thieu Ly, Nicole Melissa Carroll, Jimmy Chi Cooc, and John Dich, was charged with first degree murder for his involvement in the shooting death of Matthew Seivert. On defendant’s motion, we incorporated the record in defendant’s earlier appeal, case No. C052280, by reference. The following facts are summarized from our prior opinion. Defendant devised a plan whereby Carroll would phone Seivert and ask him to meet her at Tahoe Park; defendant and his friends would drive to the park, wait for Seivert, and then “jump” him or beat him up. That night, Seivert met Carroll at the park and they spoke for a few minutes. When Seivert returned to his car and tried to leave, the defendants blocked his path and Ly fired shots into the car, killing Seivert. (People v. Ly, et al. (Sept. 23, 2008, C052280) [nonpub. opn.] (Ly).) The jury was instructed, inter alia, with CALJIC No. 3.02 on the natural and probable consequences doctrine and whether murder was the natural and probable consequences of the assault. The jury found all five defendants guilty of first degree murder (§ 187, subd. (a)) and found true the special circumstance allegation that the shooter, defendant Hung Thieu Ly, committed the murder while lying in wait (§§ 190.2, subd. (a)(15), 12022.53, subds. (b)-(d)). On May 6, 2020, defendant filed a petition for resentencing under section 1170.95. In the petition, defendant declared that a complaint, information, or indictment had been filed against him that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine; that he was convicted of first or second degree murder pursuant to the felony-murder rule or the natural and probable consequences doctrine; and that he could not now be convicted of first or second degree murder based on the recent changes to sections 188 and 189. He requested