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Name: People v. Didyavong (2023) 90 Cal.App.5th 85
Case #: D079712
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 04/07/2023
Summary

Penal Code section 1172.6 does not provide a mechanism to reduce a first degree murder conviction to second degree murder. In 2001, a jury convicted defendant of first degree murder for his role in the a multiple-person, gang-related beating and shooting death. In 2019, defendant petitioned for resentencing under section 1172.6. After an evidentiary hearing, the trial court denied the petition, finding that the People proved beyond a reasonable doubt that defendant was guilty of second degree murder as an aider and abettor under an implied malice theory. The court did not explicitly reach a conclusion regarding first degree murder. On appeal, defendant argued that the trial judge should have reduced his first degree murder conviction to second degree murder and resentenced him. Held: Affirmed. Section 1172.6 authorizes the court to take one of two actions: deny the petition for relief or grant the petition for relief. In granting the petition, the statute provides no mechanism for the court to reduce a first degree murder conviction to second degree. The proper approach in this case was for the court to deny the petition.

Substantial evidence supported the trial court’s finding that defendant committed second degree murder as an aider and abettor under an implied malice theory. Defendant also argued there was not substantial evidence to support the trial court’s finding that he committed second degree murder as an aider and abettor under an implied malice theory. The Court of Appeal disagreed, applying the standard in People v. Powell (2021) 63 Cal.App.5th 689. Defendant beat the victim with a 12-inch baseball bat, but there was no evidence that he knew his co-defendant had brought a firearm to the confrontation. Implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another. Based on the history of this gang and defendant’s participation in the assault with a baseball bat, defendant would know weapons could be involved. Additionally, there was some time between when the shooter retrieved the weapon and when he began shooting because the other attackers had to move out of the way. Finally, the defendant hit the victim in the head one last time as the rest of the attackers ran back to their cars, demonstrating an awareness that he was endangering the victim’s life. Thus, there was substantial evidence that the defendant’s “acts and mental state reflect that he was an aider and abettor whose conduct demonstrated an abandoned and malignant heart.”

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/D079712.PDF