People v. Pao CA3

Filed 9/18/23 P. v. Pao CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C093267

Plaintiff and Respondent, (Super. Ct. No. 05F03254)

v.

GE LOR PAO,

Defendant and Appellant.

In 2005, defendant Ge Lor Pao and his codefendant Chongt Yang were members of a gang; the victim was a member of a rival gang. On February 20th of that year, defendant and his codefendant were passengers in a gold Toyota. The victim was driving

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a red Honda. When both cars stopped at an intersection, defendant and his codefendant exited the Toyota and walked toward the Honda. Both defendant and his codefendant were armed with a gun and both of them shot at the victim multiple times. The victim was hit six times and was killed. (People v. Yang (Sept. 28, 2009, C056356, C056754) [nonpub. opn.] (Yang).) In 2007, a jury found defendant and his codefendant guilty of first degree murder and found that they committed the crime for the benefit of a criminal street gang. (Pen. Code, §§ 187, subd. (a), 186.22, subd. (b)(1).)1 As to defendant, the jury found true that he personally used a firearm. (§ 12022.53, subd. (d)(1).) This court affirmed the judgment in 2009. (Yang, supra, C056356, C056754.) In June 2020, defendant filed a petition for resentencing under former section 1170.95, now 1172.6.2 The trial court denied defendant’s petition in December 2020, reasoning that defendant was ineligible for relief because his jury was never instructed on felony murder or the natural and probable consequences doctrine. Instead, the jury was instructed with CALCRIM No. 401 on direct aiding and abetting and with CALCRIM Nos. 520 and 521 on malice aforethought murder and first degree willful, deliberate, premeditated murder. Defendant appealed the trial court’s denial of his petition for resentencing. In April 2021, counsel filed a brief raising no arguable issues under People v. Wende (1979) 25 Cal.3d 436 and asked this court to review the record and determine whether