People v. Lee

95 Cal.App.5th 1164

314 Cal.Rptr.3d 146

The PEOPLE, Plaintiff and Respondent,

v.Kenny Inkwon LEE, Defendant and Appellant.

B323940

Court of Appeal, Second District, Division 1, California.

Filed September 27, 2023

Marilee Marshall, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

BENDIX, J.

Kenny Inkwon Lee appeals from the denial of his resentencing petition under Penal Code¹ former section 1170.95, since renumbered as section 1172.6. This is Lee's second petition; we affirmed the denial of his first one because he was convicted of murder under the provocative act doctrine, whereas the version of former section 1170.95 in effect at the time extended relief only to those convicted of murder under a felony murder or natural and probable consequences theory.

Subsequently, the Legislature amended former section 1170.95, expanding it to provide relief to defendants convicted under any theory in which malice was imputed to them based solely on their participation in a crime. The Legislature also amended the statute to encompass defendants convicted of attempted murder and manslaughter.

Lee filed his second petition under the amended statute, seeking resentencing for his murder and attempted murder convictions. He contended, inter alia, that the jury instructions at his trial permitted him to be convicted solely on the malicious provocative acts of his confederates in the underlying robbery, without any findings as to Lee's mental state. The resentencing court denied his petition without an evidentiary hearing, finding Lee was ineligible for relief as a matter of law.

Although recent case law, including our opinion addressing Lee's first petition, has held that a conviction for provocative act murder requires proof that the defendant personally harbored the mental state of malice, our review of the history of the provocative act doctrine reveals this was not the case when Lee was convicted in 1994. Under the then-applicable Supreme Court authority, a defendant could be convicted for a killing by a third party provoked by an accomplice's actions with malice aforethought, regardless of the defendant's personal mental state. Lee's jury was so instructed. We therefore conclude Lee may have been convicted under a theory of imputed malice, and thus, he is not barred as a matter of law from relief under section 1172.6.

We reject Lee's contention, however, that he is entitled to relief for his attempted murder conviction, which did not implicate the provocative act doctrine nor any theory of imputed malice.

Accordingly, we affirm in part, reverse in part, and remand for the resentencing court to issue an order to show cause regarding Lee's murder conviction.

BACKGROUND

1. Facts as summarized in our opinion from Lee's direct appeal

We quote the factual summary from our 1996 opinion addressing Lee's appeal from his conviction. (People v. Lee (May 28, 1996, B088132 [nonpub. opn.] (Lee I ).) As we address in our Discussion, post , we no longer can rely on factual summaries from prior appellate opinions to determine eligibility for resentencing in section 1172.6 proceedings. (See People v. Flores (2022) 76 Cal.App.5th 974, 988, 292 Cal.Rptr.3d 105 ( Flores ).) We provide the summary solely as context for the issues in the case.

"Three men arrived at a shopping center in a red sports car. While the driver (Chul Woong Choi) waited in the car, Lee and Joo Hyung Woo got out and went into a video store. Outside, a suspicious security guard (Agustin Nolasco) started to write down the sports car's license number. Inside, Lee and Woo pointed guns at the video store's two employees, dragged them to the back of the store, beat them, and took their money and personal belongings. Lee and Woo then ransacked the store and took money from the cash register." (Lee I, supra , B088132.)

"Impatient, Choi (who was also carrying a gun) got out of the sports car, tried to open the door to the video store, and yelled to Lee and Woo, ‘Hey, let's go.’ As Lee and Woo ran out of the store, Nolasco (the guard) stepped out of his car and yelled (in English), ‘What's going on?’ In response, Lee and Choi pointed their guns at Nolasco and Nolasco, in turn, ducked down behind his open car door and grabbed his gun from his car. Lee and Woo got into the sports car and when Nolasco raised his head to see what was going on, Choi (then halfway into the driver's seat of the sports car) fired a shot at Nolasco. Nolasco shot back twice, hitting Choi. Lee (who was sitting next to Choi) stepped on the accelerator and, while shooting at Nolasco, drove slowly out of the parking lot." (Lee I, supra , B088132.)

"Nolasco ran into the video store, made sure everyone was all right, then went back outside where he found Choi's dead body face down on the ground where he had been dumped by Lee and Woo." (Lee I, supra , B088132.)

2. Trial, conviction, and appeal

A jury convicted Lee of the first degree murder of Choi, the attempted murder of Nolasco, two counts of robbery, and one count of receiving stolen goods, and found firearm enhancements true. The trial court sentenced Lee to 28 years to life for the murder, to run concurrently with a determinate sentence of 16 years 4 months for the other counts.

We affirmed the judgment. (Lee I, supra , B088132.) We rejected, inter alia, Lee's argument that the evidence was insufficient to convict him for the murder of his accomplice Choi under the provocative act doctrine. Lee contended on appeal that the evidence showed that Choi, not Lee, provoked Nolasco, and therefore Lee's conduct was not a proximate cause of Choi's death. We concluded the evidence that Nolasco opened fire after Choi and Lee pointed guns at him established that "Lee's conduct was a substantial factor in causing the shooting, and the fact that Choi's own conduct was also a contributing factor does not relieve Lee of criminal responsibility for this killing." (Ibid. )

3. First resentencing petition and appeal

In February 2019, Lee filed a petition for resentencing pursuant to former section 1170.95 (Stats. 2018, ch. 1015, § 4), the predecessor to section 1172.6. The resentencing court denied the petition without Lee present or represented by counsel. The resentencing court found Lee's jury was instructed on provocative act murder, conviction for which requires a finding of "at least implied malice," and therefore Lee was ineligible for relief. The resentencing court further found Lee's jury was instructed that it could not convict Lee of attempted murder unless he had express malice.

Lee appealed the denial of his petition, and we affirmed. ( People v. Lee (2020) 49 Cal.App.5th 254, 263 Cal.Rptr.3d 19 ( Lee II ).) The appellate record as to that petition did not contain any of the trial or appellate record pertaining to Lee's original conviction, including any jury instructions. ( Id. at pp. 258, fn. 2, 260, fn. 3, 263 Cal.Rptr.3d 19.) At Lee's request, we took judicial notice of our 1996 opinion from Lee's original appeal. ( Id. at p. 258, fn. 2, 263 Cal.Rptr.3d 19.) We concluded our opinion from the original appeal "provides sufficient information to resolve this appeal." ( Id. at p. 260, fn. 3, 263 Cal.Rptr.3d 19.)

In accordance with decisions from this division and others, we first held that when the resentencing court assessed whether Lee had made a prima facie showing for relief under former section 1170.95, the resentencing court could rely on the record of conviction, including our opinion from Lee's original appeal. ( Lee II,supra , 49 Cal.App.5th at p. 262, 263 Cal.Rptr.3d 19.) We also held the resentencing court could make this prima facie determination without first appointing counsel. ( Ibid. )

As to the merits of Lee's petition, we held Lee was ineligible for relief because he had not been convicted under either the felony-murder rule or the natural and probable consequences doctrine, but instead, under the provocative act doctrine. ( Lee II , supra , 49 Cal.App.5th at pp. 257–258, 263 Cal.Rptr.3d 19.) We distinguished provocative act murder from the other two theories because provocative act murder " ‘requires proof that the defendant personally harbored the mental state of malice ....’ " ( Id. at p. 264, 263 Cal.Rptr.3d 19.) "Lee therefore cannot show that he ‘could not be convicted of first or second degree murder because of changes to Section 188 or 189’ as required for relief under section 1170.95, subdivision (a)(3)." ( Id. at p. 265, 263 Cal.Rptr.3d 19.)

The Supreme Court granted review of our decision and held it pending a decision in People v. Lewis . (July 15, 2020, S262459.) The high court subsequently issued its Lewis decision, holding that a petitioner under former section 1170.95 was entitled to appointed counsel upon filing of a facially sufficient petition, before the resentencing court evaluated the petitioner's prima facie showing. ( People v. Lewis (2021) 11 Cal.5th 952, 957, 281 Cal.Rptr.3d 521, 491 P.3d 309.) The court further held that when evaluating the prima facie showing, "a trial court should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ [Citation.]" ( Id. at p. 972, 281 Cal.Rptr.3d 521, 491 P.3d 309.) Instead, the resentencing court must conduct an evidentiary hearing. (See id. at p. 971, 281 Cal.Rptr.3d 521, 491 P.3d 309.)

The Supreme Court then dismissed review in Lee II , ordering our decision noncitable and nonprecedential to the extent our decision was inconsistent with Lewis . Because Lewis did not address the provocative act doctrine, our holding that Lee's murder conviction under that theory was ineligible for resentencing remained intact.

4. Second resentencing petition

The Legislature amended former section 1170.95 effective ...