People v. Ly CA4/3 ( 2022 )

Filed 12/6/22 P. v. Ly 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, G061553
v. (Super. Ct. No. C69210)
HUNG LY, OPI NION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Gary S.
Paer, Judge. Affirmed.
Sally Patrone, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
* * *
The trial court denied defendant Hung Ly’s Penal Code section 1170.95
petition seeking to vacate his two murder convictions and to be resentenced (now Pen.
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Code, § 1172.6). The court denied the petition at the prima facie stage because “the jury
was not instructed with a natural and probable consequences doctrine, and it was not a
felony murder case, and there were no felony murder instructions.”
Ly filed a notice of appeal. Appointed appellate counsel filed an opening
brief raising no arguable issues. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).)
Ly did not file a supplemental brief on his own behalf.
In the interests of justice, this court has reviewed the record and found no
arguable issues. (See People v. Flores (2020) 54 Cal.App.5th 266, 268.) Thus, we affirm
the order of the trial court.
I
PROCEDURAL HISTORY
In 1989, Ly and two codefendants were convicted of two counts of first
degree murder, four counts of attempted murder, and one count of conspiracy to commit
murder. The jury found true an allegation that one of the codefendants personally used a
firearm. The jury also found true that Ly and another codefendant were each armed with
a firearm. This court affirmed the convictions as modified. (People v. Nguyen et al.
(Nov. 15, 1991, G009447) [nonpub. opn.].)
In August 2021, Ly filed an initial postjudgment petition seeking to vacate
his two murder convictions, and a later petition seeking to vacate his attempted murder
convictions. (§ 1172.6.) The prosecution filed responses, which included a copy of the
information, the jury instructions used in the 1989 trial, a copy of the verdict forms, and
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Further undesignated statutory references are to the Penal Code. The Legislature
renumbered former section 1170.95 without substantive change, effective June 30, 2022.
(Stats. 2022, ch. 58, § 10.)
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the underlying unpublished opinion.
As to murder counts, the prosecution opposed the motion. The prosecution
argued, “the jury was not instructed under either the natural and probable consequences
doctrine or the felony murder rule.” As to the attempted murder counts, the prosecution
conceded that Ly was entitled to an order to show cause and an evidentiary hearing
because “the jury was given a natural and probable consequences instruction applicable
to those charges.”
In July 2022, the court conducted a prima facie hearing and denied Ly’s
petition as to the murder counts but issued an order to show cause as to the attempted
murder counts. Ly’s trial counsel filed a notice of appeal on defendant’s behalf.
II
DISCUSSION
When appointed counsel has identified no arguable issues on appeal, the
appellate court independently reviews the record for any arguable issues. (Wende, supra,
25 Cal.3d at pp. 441-442.) Generally, “an arguable issue on appeal consists of two
elements. First, the issue must be one which . . . is meritorious. That is not to say that
the contention must necessarily achieve success. Rather, it must have a reasonable
potential for success. Second, if successful, the issue must be such that, if resolved
favorably to the appellant, the result will either be a reversal or a modification of the
judgment.” (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)
Here, based on our independent review of the record, we have similarly
found no arguable issues. (See Wende, supra, 25 Cal.3d at p. 442, fn. 3.) As to the two
murder convictions, the absence of instructions on the natural and probable consequences
doctrine and/or the felony-murder rule confirm Ly is ineligible for relief under section
1172.6 as a matter of law and the trial court properly denied the petition at the prima facie
stage. (See People v. Lewis (2021) 11 Cal.5th 952, 961-970.)
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III
DISPOSITION
The order is affirmed.
MOORE, ACTING P. J.
WE CONCUR:
GOETHALS, J.
DELANEY, J.
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