People v. Her CA3

Filed 3/13/23 P. v. Her CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yuba) ----

THE PEOPLE, C096211

Plaintiff and Respondent, (Super. Ct. No. CRF01- 0000643) v.

VICHUAN HER,

Defendant and Appellant.

A jury found defendant Vichuan Her guilty of murder, assault with a semiautomatic firearm, allowing another to discharge a firearm from the car he was driving, and discharging a firearm at an occupied vehicle. This appeal arises from the second petition defendant filed for resentencing under Penal Code,1 section 1172.6.2 The

1 Undesignated statutory references are to the Penal Code. 2 Defendant filed both petitions under former section 1170.95. The Legislature amended section 1170.95, effective January 1, 2022, under Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551). Further, effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6, without substantive change (Stats. 2022, ch. 58, § 10). Unless otherwise noted, citations in this opinion are to the current version of the provision as codified in section 1172.6.

1

trial court denied the first petition on the merits because defendant was not convicted under the felony-murder rule or under the natural and probable consequences doctrine. Defendant did not appeal that ruling. The trial court denied the second petition noting it had already decided the issue. We shall affirm the judgment on the merits. FACTUAL AND PROCEDURAL BACKGROUND An information charged defendant with first degree premeditated murder (§ 187, subd. (a)—count I) with an enhancement defendant was armed with a firearm (§ 12022, subd. (a)(1)), two counts of assault with a semiautomatic firearm (§ 245, subd. (b)— counts II & V), permitting another to discharge a firearm from the car he owned or drove (§ 12034, subd. (b)—count III), and discharging a firearm at an occupied car (§ 246— count IV). The information alleged enhancements that all counts were committed for the benefit of a street gang. (§ 186.22.) As to counts I and IV, the information alleged an enhancement that at least one principal intentionally and deliberately discharged a firearm causing great bodily injury. (§ 12022.53, subds. (d) & (e).) The basic facts of the case come from our prior unpublished opinion. (People v. Her (July 29, 2003, C042210) [nonpub. opn.].)3 On October 13, 2001, Wong Lee was driving in a car with three of his friends. When Lee stopped at an intersection, he looked in his rearview mirror and said, “Look, Vichuan.” Defendant was driving the car behind Lee’s car. Defendant pulled up alongside Lee’s car. When the light turned green, Lee turned right, away from defendant. Defendant cut across a lane of traffic to follow Lee. The front passenger in defendant’s car pointed a gun out of the window and fired several shots toward Lee’s car. Lee died as a result of a single gunshot wound to his head. At trial, the trial court gave the jury the following instructions for the crime of murder: