People v. Phan CA4/3

Filed 10/18/23 P. v. Phan CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G062225

v. (Super. Ct. No. 08WF0487)

THANH TAN PHAN, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed. Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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Defendant Thanh Tan Phan was convicted of attempted murder. He filed a resentencing petition under Penal Code section 1170.95, which the trial court dismissed.1 On appeal, Phan’s appointed counsel filed a no-issue brief, requesting we exercise our discretion to independently review the record for error under People v. Delgadillo (2022) 14 Cal.5th 216. Though Phan has not filed a supplemental brief, we have exercised our discretion to review the record. Finding no arguable issues, we affirm the trial court’s postjudgment order.

I FACTS AND PROCEDURAL BACKGROUND In 2010, Phan was found guilty of attempted murder, aggravated assault with a deadly weapon, and street terrorism based on a gang-related beatdown and stabbing that occurred outside a restaurant. The jury also found true a gang enhancement and a great bodily injury enhancement. Phan was sentenced to a determinate term of 14 years plus an indeterminate term of 15 years to life. In October 2022, Phan filed a resentencing petition under section 1172.6. The court appointed a public defender to represent him. It held a prima facie hearing on the petition in January 2023. Following the hearing, the court concluded Phan was ineligible for relief as a matter of law and denied the petition. The court explained the jury was not instructed “as to the natural and probable consequences doctrine . . . . The jury instructions contained do not reference natural and probable consequences or any other theory of vicarious liability that could have improperly imputed the intent to kill based on petitioner’s participation in another offense. . . . The jury’s guilty verdict thus