People v. Tran CA3

Filed 7/24/23 P. v. Tran CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C094216

Plaintiff and Respondent, (Super. Ct. No. 98F03454)

v. OPINION ON TRANSFER

QUYEN TRAN,

Defendant and Appellant.

In 1999, a jury found defendant Quyen Tran guilty of first degree murder and assault with a firearm in a gang-related, drive-by shooting. The jury found true the allegation defendant had personally used a firearm. The jury also found true the “drive- by murder” special-circumstance allegation that “[t]he murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at

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another person . . . outside the vehicle with the intent to inflict death.” (Pen. Code,1 § 190.2, subd. (a)(21).) (People v. Vo (Apr. 19, 2005, C034960) [nonpub. opn.].)2 The trial court sentenced defendant to life without the possibility of parole for the murder, a consecutive 25 years to life for the firearm enhancement, and a consecutive six years for the assault with a firearm, plus two years for the gang enhancements. (Ibid.) On appeal, we affirmed the convictions, but modified the sentences on the assault conviction and gang enhancement. (Ibid.) On March 6, 2020, defendant filed a petition for resentencing under section 1172.6,3 alleging he had been convicted of first degree murder under the felony-murder rule or natural and probable consequences doctrine, could not now be convicted based on changes made to sections 188 and 189, and was eligible for resentencing because he was not the actual killer, did not aid and abet the actual killer with intent to kill, and the victim was not a peace officer. After briefing by the parties, the trial court denied the petition finding defendant was ineligible for relief as a matter of law because the “jury was not instructed on either the natural and probable consequences doctrine or felony-murder,” and under the instructions given, the jury necessarily found he acted with intent to kill by virtue of the true finding on the special-circumstance allegation. Defendant filed a notice of appeal. Approximately one week later, he filed a motion for reconsideration in the trial court. The trial court noted it would deny the motion for reconsideration, but since defendant had filed a notice of appeal prior to the