People v. Phang CA1/3

Filed 12/8/22 P. v. Phang CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, A165099

v. (Sonoma County VINH THE PHANG, Case No. SCR146751) Defendant and Appellant.

In 1988, a jury convicted defendant Vinh The Phang of the murder of Johnny Fong. The trial court sentenced him to 25 years to life in prison. In 2021, Phang petitioned for resentencing under former Penal Code section 1170.95,1 now section 1172.6.2 The trial court denied the petition on the basis that Phang had not made a prima facie case showing entitlement to resentencing. On appeal, Phang argues he was entitled to an evidentiary hearing on his petition and the People concede the matter should be

1 All undesignated statutory references are to the Penal Code.

2 Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. Throughout this opinion, we cite to section 1172.6 for ease of reference.

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remanded for further proceedings under section 1172.6. We agree with the parties and reverse the order denying Phang’s resentencing petition. On remand, the trial court is directed to issue an order to show cause and hold an evidentiary hearing on whether Phang is entitled to relief under section 1172.6. FACTUAL AND PROCEDURAL BACKGROUND The background facts in this section are taken from the People’s motions to dismiss Phang’s resentencing petition. The prosecution compiled these facts from the record in People v. Phang, Case No. SCR14675, filed motions in the same matter, as well as probation reports, transcripts taken during trial, and appellate briefing. None of the underlying materials are included in the appellate record. In early 1987, Phang worked for Albert Hseuh at his restaurant in St. Louis, Missouri and at his house in Baldwin, Missouri. In March 1987, a gun was taken from Hseuh’s house during a burglary. On May 19, 1987, Phang was in the Bay Area, having received a traffic citation in San Mateo, California. On May 21, 1987, the deceased body of Johnny Fong, a Chinese businessman who lived in Hillsborough, California a few weeks a year, was found next to his car in a parking lot in Petaluma, California. The cause of death was two gunshot wounds to the head. The gold Rolex watch worn by Fong and his wallet were not found. Phang knew Fong, as Phang’s sister was married to Fong’s brother. Phang had visited Fong’s house in Hillsborough in 1982. On May 27, 1987, Canadian Customs officers stopped Phang and two male passengers in a car at the Canadian border. In the trunk, the customs officers found a loaded gun inside a duffel bag along with coveralls that only