People v. Ketsouvannasane CA4/2

Opinion

Filed 2/7/23 P. v. Ketsouvannasane CA4/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE,

Plaintiff and Respondent, E076512

v. (Super.Ct.No. CR57988)

KHAMCHAN BRET OPINION KETSOUVANNASANE,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Reversed.

Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland and Charles C. Ragland, Senior Assistant Attorneys General,

and Eric A. Swenson, Jennifer B. Truong, and Marvin E. Mizell, Deputy Attorneys

General, for Plaintiff and Respondent.

1 In 1995, petitioner Khamchan Bret Ketsouvannasane was convicted of (among

other things) first degree murder, with a robbery-murder special circumstance. In 2019,

he filed a petition for resentencing under Penal Code section 1172.6.1 The trial court

denied the petition; it ruled that the robbery-murder special circumstance finding

conclusively established that he was not eligible for relief.

Petitioner contends that this was error. Under People v. Strong (2022) 13 Cal.5th

698 (Strong) — decided while this appeal was pending — he is correct.

I

DISCUSSION

Under section 1172.6, the trial court must vacate a first degree murder conviction

that was based on a felony-murder theory, unless the petitioner either (1) was the actual

killer, (2) had the intent to kill and aided and abetted the commission of first-degree

murder, or (3) was a major participant in the underlying felony and acted with reckless

indifference to human life.2 (§ 1172.6, subd. (d)(3), incorporating § 189, subd. (e).)

1 All further statutory citations are to the Penal Code.

The petition was actually filed under former section 1170.95. (Enacted by Stats. 2018, ch. 1015, § 4, amended by Stats. 2021, ch. 551, § 2.) While this appeal was pending, former section 1170.95 was renumbered as section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We will use section 1172.6, somewhat anachronistically, to refer to whichever one of the two statutes was in effect at the relevant time. 2 Or — we note for completeness, although it is not relevant here — unless the victim was a police officer killed in the course of his or her duties and the defendant knew or should have known that. (§ 189, subd. (f).)

2 A felony-murder special circumstance, however, requires that the defendant either

(1) was the actual killer, (2) had the intent to kill and aided and abetted the commission of

first-degree murder, or (3) was a major participant in the underlying felony and acted

with reckless indifference to human life. (§ 190.2, subds. (a)(17), (b)-(d).)

Accordingly, when first confronted with the question, this court held that a true

finding on a felony-murder special circumstance conclusively established ineligibility for

relief under section 1172.6. (People v. Jones (2020) 270 Cal.Rptr.3d 362, review granted

Jan. 27, 2021, S265854, depublished and transferred with directions Sept. 28, 2022.)

While this appeal was pending, however, Strong held that People v. Banks (2015)

61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) “substantially

clarified” the requirements of a felony murder special-circumstance finding. (Strong,

supra, 13 Cal.5th at p. 706.) Therefore, a felony murder special-circumstance finding

made before Banks and Clark were decided does not conclusively establish ineligibility

for relief under section 1172.6. (Strong, supra, at pp. 710-720.)

The People concede that, in light of Strong, the trial court erred, and we must

reverse the order appealed from. We agree, and we will do so.

Petitioner also argues that we should direct the trial court to issue an order to show

cause. (See § 1172.6, subd. (c).) This, the People do not concede.

Because the trial court denied the petition based on the felony-murder special

circumstance, it has not yet ruled on whether the petition otherwise stated a prima facie

3 case. We decline to review a ruling it did not make. We leave the question of whether to

issue an order to show cause to be decided by the trial court in the first instance.

II

DISPOSITION

The order appealed from is reversed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

We concur:

CODRINGTON J.

SLOUGH J.