People v. Ly CA4/3

Filed 12/6/22 P. v. Ly 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G061553

v. (Super. Ct. No. C69210)

HUNG LY, OPI NION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Sally Patrone, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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The trial court denied defendant Hung Ly’s Penal Code section 1170.95 petition seeking to vacate his two murder convictions and to be resentenced (now Pen. 1 Code, § 1172.6). The court denied the petition at the prima facie stage because “the jury was not instructed with a natural and probable consequences doctrine, and it was not a felony murder case, and there were no felony murder instructions.” Ly filed a notice of appeal. Appointed appellate counsel filed an opening brief raising no arguable issues. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).) Ly did not file a supplemental brief on his own behalf. In the interests of justice, this court has reviewed the record and found no arguable issues. (See People v. Flores (2020) 54 Cal.App.5th 266, 268.) Thus, we affirm the order of the trial court.

I PROCEDURAL HISTORY In 1989, Ly and two codefendants were convicted of two counts of first degree murder, four counts of attempted murder, and one count of conspiracy to commit murder. The jury found true an allegation that one of the codefendants personally used a firearm. The jury also found true that Ly and another codefendant were each armed with a firearm. This court affirmed the convictions as modified. (People v. Nguyen et al. (Nov. 15, 1991, G009447) [nonpub. opn.].) In August 2021, Ly filed an initial postjudgment petition seeking to vacate his two murder convictions, and a later petition seeking to vacate his attempted murder convictions. (§ 1172.6.) The prosecution filed responses, which included a copy of the information, the jury instructions used in the 1989 trial, a copy of the verdict forms, and