People v. Sum CA3

Filed 4/24/23 P. v. Sum 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C097012

Plaintiff and Respondent, (Super. Ct. No. STKCRFE20050008445) v.

BRIAN SUM,

Defendant and Appellant.

Defendant Brian Sum appeals from an order denying his petition to vacate his attempted murder conviction under former Penal Code section 1170.95 (now section 1172.6).1 Appointed counsel for defendant has asked this court to conduct an independent review of the record to determine whether there are any arguable issues on

1 Defendant filed his second petition in January 2022. Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) For purposes of clarity and conformity with the petition, we will continue to refer to the statute as former section 1170.95.

1

appeal and defendant has filed a supplemental brief raising various arguments. (People v. Wende (1979) 25 Cal.3d 436 (Wende); People v. Delgadillo (2022) 14 Cal.5th 216.) We have considered defendant’s arguments and will affirm the trial court’s order. I. BACKGROUND In 2006, a jury found defendant guilty of attempted murder (Pen. Code, §§ 664, 187, subd. (a))2 as to an unidentified victim, assault with a firearm (§ 245, subd. (a)(2)), shooting at an inhabited dwelling or vehicle (§ 246), possessing a firearm as a convicted felon (former § 12021, subd. (a)), and discharging a firearm with gross negligence (§ 246.3). As to the attempted murder count, the jury also found true allegations defendant personally used a firearm. (§ 12022.53, subd. (c).) On direct appeal, we struck an enhancement on the shooting at an inhabited dwelling count, but otherwise affirmed the judgment. (People v. Sum (Mar. 24, 2008, C052381) [nonpub. opn.].)3 We summarized the facts of the case in our opinion. In short, defendant fired a gun in a residential area. Witnesses described a red car driving slowly in the street and making a U-turn, and the sound of gunshots. One witness “saw defendant shoot a handgun ‘two or three times’ in the direction of the cars.” Another witness, the victim in the assault with a firearm count, was wounded in the leg. The victim for the attempted murder charge for which defendant was convicted was the unidentified driver of the red car. Police found shell casings and expended shotgun shells in the street shortly thereafter. (Ibid.) In 2022, defendant filed a petition for resentencing under former section 1170.95, alleging he had been prosecuted under a theory of attempted murder under the natural and probable consequences doctrine; he was convicted of attempted murder; and he could not