People v. Mounsaveng CA5

Opinion

Filed 9/2/26 P. v. Mounsaveng CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F089253

Plaintiff and Respondent, (Super. Ct. No. CF97590200)

v.

ODAY MOUNSAVENG, OPINION Defendant and Appellant.

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Alvin M.

Harrell III, Judge.

Oday Mounsaveng, in pro. per.; and Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

* Before Hill, P. J., Franson, J. and DeSantos, J.

INTRODUCTION

Appellant and defendant Oday Mounsaveng (Mounsaveng) and codefendant Vaene Sivongxxay (Sivongxxay) committed a series of robberies together in Fresno County, between July and December 1996, while both were armed with firearms. On December 19, 1996, both defendants entered the Sean Hong Jewelry store to commit another robbery. They initially conversed with the proprietors, Henry Song (Song) and his wife, and then Mounsaveng pulled his gun, pointed it at Song, and demanded money and gold. Song’s wife pushed a silent alarm button, and Sivongxxay pulled his gun and pointed it at her. During the crime, Mounsaveng dragged Song’s wife by her hair into the store’s back room where the safe was located. When Song resisted, Mounsaveng used his gun to beat Song in the head. As Song continued to resist, Sivongxxay shot and killed Song. The defendants escaped with approximately $30,000 to $40,000 in cash and jewelry. Mounsaveng received his share and left town.

Both defendants were charged with the first degree murder of Song with the robbery/murder special circumstance, and the prosecution sought the death penalty. They were also charged with attempted robbery and multiple counts of robbery for the other offenses committed in 1996. Defendants waived jury trials for the guilt and penalty phases and were tried together in a joint bench trial.

Prior to trial, Sivongxxay admitted to police that he fatally shot Song. At trial, Mounsaveng testified and did not deny his commission of all the robberies and his presence during the murder. Mounsaveng also testified he acted under duress during every robbery, including the events at the Sean Hong Jewelry store, and claimed Sivongxxay and other people allegedly threatened to harm him and his family if he failed to commit each crime. Mounsaveng also claimed he was always given an unloaded weapon to hold during all of the crimes and he had no way to intervene or get away from Sivongxxay.

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In 1999, both defendants were convicted of the first degree murder of Song with the robbery/murder special circumstance and firearm enhancements. The trial court found Sivongxxay was the actual killer. The court rejected Mounsaveng’s credibility as to all aspects of his duress claim and held he was guilty of the first degree murder of Song with the robbery/murder special circumstance because he was a major participant who acted with reckless indifference to human life. As to the other offenses, defendants were convicted of 13 counts of robbery and two counts of attempted robbery, with firearm and great bodily injury enhancements.

After the penalty phase, the court sentenced Mounsaveng to life in prison without the possibility of parole (LWOP), and sentenced Sivongxxay to death. The judgments were affirmed in separate appeals.

The Felony Murder Rule and Penal Code1 Section 1172.6 At the time of Mounsaveng’s trial, “[u]nder the prior felony-murder rule, if a death occurred during a listed felony, all the participants in the underlying crime could be convicted of murder. And under the felony-murder special-circumstance enhancement, if a participant was the actual killer, directly aided and abetted the actual killer with the intent to kill or was a major participant in the underlying felony who acted with reckless indifference to human life, then he or she could be sentenced to death or life in prison without the possibility of parole (LWOP).” (People v. Cody (2023) 92 Cal.App.5th 87, 92 (Cody), italics added.)

After Mounsaveng was convicted, the terms “major participant” and “reckless indifference to human life” in the felony-murder special circumstance statute were clarified in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). (Cody, supra, 92 Cal.App.5th at p. 92.)

1 All further statutory citations are to the Penal Code.

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In 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) became effective and amended “ ‘ “the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” ’ ” (People v. Hill (2024) 100 Cal.App.5th 1055, 1065 (Hill), italics added.)

Section 1437 “repurpose[d] preexisting law governing felony-murder special-

circumstance findings—the findings a [trier of fact] makes in felony-murder cases to determine whether the defendant may be sentenced to death or life without possibility of parole [citation] — to define eligibility for sentencing relief.” (People v. Strong (2022) 13 Cal.5th 698, 703 (Strong); Cody, supra, 92 Cal.App.5th at p. 93.) Section 1172.6 allows a defendant to file a petition for resentencing of a prior murder conviction and argue that conviction is no longer valid after the statutory amendments. (Cody, supra, 92 Cal.App.5th at p. 93.)

Mounsaveng’s Petition for Resentencing In 2023, Mounsaveng filed a petition in the trial court pursuant to section 1172.6 for resentencing of his first degree murder conviction and LWOP sentence. He alleged he was no longer guilty of first degree murder after the amendments to the felony-murder rule because he was not the actual killer, he did not act with the intent to kill, and he was not a major participant and did not act with reckless indifference to human life because he acted under the duress of Sivongxxay’s threats.

The trial court found Mounsaveng’s petition stated a prima facie case and conducted an evidentiary hearing, where the parties submitted the matter on the transcript of the joint bench trial.

After the evidentiary hearing, the trial court denied the petition and held Mounsaveng was still guilty of murder as a major participant who acted with reckless indifference to life based on the Banks and Clark factors.

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In this appeal from the trial court’s denial of his petition, Mounsaveng’s appellate counsel filed a brief which summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) and People v. Wende (1979) 25 Cal.3d 436 (Wende).

In response to this court’s invitation, Mounsaveng filed a lengthy supplemental brief that is similar to the brief that his attorney filed prior to the section 1172.6 evidentiary hearing. Mounsaveng effectively renews the arguments he raised at the evidentiary hearing, that Sivongxxay threatened him so that he acted under duress during every robbery and the murder, he always held an unloaded gun, he was not a major participant, and he did not act with reckless indifference based on the Banks and Clark factors.

We review the trial evidence, the trial court’s findings at the section 1172.6 evidentiary hearing, and Mounsaveng’s arguments, and affirm the denial of Mounsaveng’s petition.

FACTS2

A first amended information was filed in the Superior Court of Fresno County that charged defendants Mounsaveng and Sivongxxay with count 1, first degree murder of

2 After notice to the parties and without objection, this court takes judicial notice of the records before this court of the reporter’s transcripts of the guilt and penalty phases of the joint bench trial for Mounsaveng and Sivongxxay, which the trial court in the aboveentitled matter reviewed to deny Mounsaveng’s petition for resentencing, and this court’s opinion that affirmed the judgment in Mounsaveng’s direct appeal. (People v. Mounsaveng (F033224, Mar. 22, 2001) [nonpub. opn.] (Mounsaveng I).)

The following facts are from the California Supreme Court’s opinion in People v.

Sivongxxay (2017) 3 Cal.5th 151 (Sivongxxay), which reviewed the facts from the entirety of the evidence at defendants’ joint bench trial and affirmed the judgment in Sivongxxay’s automatic appeal; this court’s opinion in Mounsaveng I, which also

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Song (§ 187, subd. (a)), with the robbery/murder special circumstance (§ 190.2, subd. (a)(17)); counts 2-15, robbery (§§ 211, 212.5, subd. (c)); and count 16, attempted robbery (§§ 664, 211, 212.5, subd. (c)), with firearm and great bodily injury enhancements. Defendants waived jury trials for the guilt and penalty phases.

On January 25, 1999, the trial court began the joint bench trial, and the prosecution sought the death penalty for both defendants. The evidence about the crimes was introduced at trial through the testimony of the surviving robbery victims.

Attempted Robbery of the Thanh Tin Jewelry Store on July 31, 1996 “On July 31, 1996, Mounsaveng walked into the Thanh Tin Jewelry store, asked to examine a gold chain, and then left. He returned with [Sivongxxay] about an hour later. The men looked around for a long time without buying anything. Liem Phu Huynh, the owner of the jewelry store, asked the men why they were taking so long. Mounsaveng and [Sivongxxay] claimed they were brothers and were waiting for their sister to arrive. Eventually, they left.” (Sivongxxay, supra, 3 Cal.5th at p. 158.)

“When [Sivongxxay] and Mounsaveng returned to the store later that afternoon, Huynh was working in a back room, and his wife Phung Ngoc Ho was behind the sales counter. After asking to examine several items, Mounsaveng pulled a handgun out of his waistband, grabbed Ho by the collar, and pointed the gun at her. Huynh, who was watching from the back room, set off an [audible] alarm. Mounsaveng and [Sivongxxay] fled.” (Sivongxxay, supra, 3 Cal.5th at p. 158.)

Based on this incident, both defendants were charged and convicted of count 16, attempted robbery of Phung Ngoc Ho (§§ 664/211, 212.5, subd. (c)), with enhancements that Mounsaveng personally used a firearm (§ 12022.5, subd. (a)) and Sivongxxay was personally armed with a firearm (§ 12022, subd. (a)(1)).

Robbery of JMP Mini-Mart on August 16, 1996

reviewed the facts from the joint bench trial and affirmed the judgment against Mounsaveng; and the transcript of the joint bench trial.

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Xeng Wang Her owned and operated the JMP Mini-Mart. On August 16, 1996, he went to the bank. He withdrew approximately $8,000 so he would have enough money to cash customers’ checks.

While he was at the bank, Bobbie Her was working behind the counter at her parents’ store. “Mounsaveng entered and asked whether the store cashed checks. When Bobbie answered that it did, Mounsaveng left.” (Sivongxxay, supra, 3 Cal.5th at p. 158.) Mounsaveng “eventually returned with [Sivongxxay], and the two men milled about the store.” (Ibid.) Sivongxxay approached the register to check out, but then said he forgot something and appeared to resume shopping.

Xeng Wang Her returned to the store with the cash from the bank, and “began restocking drinks in the store’s refrigerator case. [Sivongxxay] walked up to Xeng, pointed a handgun at him, and forced him to walk toward the cash register. [Sivongxxay] then forced Xeng to lie down and kicked him in the back of the head. Meanwhile, Mounsaveng jumped over the counter and forced Bobbie to open the cash register. Mounsaveng and [Sivongxxay] took all of the money in the store, ripped a cordless phone off the wall, and then fled in a blue pickup truck.” (Sivongxxay, supra, 3 Cal.5th at p. 158.)

Bobbie Her testified that her father remained on the floor during the robbery and did not resist, but Sivongxxay repeatedly kicked him in the head. Sivongxxay kicked her father one more time and then ran out of the store.

Based on this incident, both defendants were charged and convicted of counts 14 and 15, the robberies of, respectively, Xeng Wang Her and Bobbie Her, with enhancements as to both counts that Sivongxxay personally used a firearm (§ 12022.5, subd. (a)) and Mounsaveng was armed with a firearm (§ 12022, subd. (a)(1)).

Robbery of the Phnom Penh Jewelry Store on October 10, 1996 In August 1996, Mounsaveng went to the Phnom Penh Jewelry store and presented a Buddha pendant to the owner, Kee Meng Suy (Suy), and asked him to repair

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it. At some point, Mounsaveng returned and picked up the item. (Sivongxxay, supra, 3 Cal.5th at pp. 158–159.)

“On October 10, 1996, [Sivongxxay] entered the Phnom Penh Jewelry store.

Mounsaveng followed a few minutes later and asked [Suy] to repair a Buddha pendant. Suy recognized Mounsaveng because he had brought in the same pendant for repair a few months before.” (Sivongxxay, supra, 3 Cal.5th at pp. 158–159.)

“Suy took the pendant to his workbench in the store’s back room. While Suy was working, his wife Suntary Heng [Heng] showed Mounsaveng some other pieces of jewelry. Suy finished repairing the pendant and handed it back to Mounsaveng, who said he was not satisfied with the work and asked Suy to do it again. Suy returned to his work bench. Heng then took the couple’s two young children, who were at the store that day, into the back room to get some food.” (Sivongxxay, supra, 3 Cal.5th at p. 159.)

“At that point, [Sivongxxay] and Mounsaveng forced their way into the back room, pointed guns at Suy’s head, and told him to ‘stay still.’ [Sivongxxay] and Mounsaveng punched Suy, pushed him to the floor, and used tape and an extension cord to bind his limbs and cover his mouth and eyes. Both men then punched, kicked, and stomped Suy as Heng and the couple’s two children watched.” (Sivongxxay, supra, 3 Cal.5th at p. 159.)

“Mounsaveng demanded Suy’s gun and the videotape from the store’s security camera, but Heng explained [Suy] had no gun and the camera was broken. Eventually, Suy lost consciousness. As Mounsaveng and [Sivongxxay] cleared out the store’s safe and the jewelry in its display cases, Heng activated a silent alarm. The two men fled in a light blue Honda.” (Sivongxxay, supra, 3 Cal.5th at p. 159.)

Based on this incident, both defendants were charged and convicted of count 12, robbery of Suy, with enhancements that Mounsaveng personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury on the victim

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(§ 12022.7, subd. (a)); and count 13, robbery of Heng, with an enhancement that Mounsaveng personally used a firearm.

Second Robbery of JMP Mini-Mart on December 14, 1996 “Mounsaveng and [Sivongxxay] returned to the JMP Mini-Mart on December 14, 1996. Xeng Wang Her was working in the store with his wife, Phayvane Boulome, and there were five or six customers inside. Upon entering the store, both Mounsaveng and [Sivongxxay] pulled out guns, told the customers to lie on the ground, and demanded that Xeng and Boulome open the cash register. Mounsaveng took money from the cash register and also picked up Xeng’s gun, which was underneath the counter. Mounsaveng then forced Xeng into a back room, where Mounsaveng took cigarettes and change. After that, Mounsaveng grabbed Boulome and demanded that she open a second cash register, but she explained it was broken.” (Sivongxxay, supra, 3 Cal.5th at p. 159.)

“Before leaving, Mounsaveng and [Sivongxxay] took money and jewelry from the customers at gunpoint. In the course of robbing the customers, [Sivongxxay] kicked an elderly woman in the mouth. One customer recalled seeing an unoccupied white car outside the store with its engine running.” (Sivongxxay, supra, 3 Cal.5th at p. 159.)

Based on this incident, both defendants were charged and convicted of count 4, robbery of Xeng Wang Her (§ 211, 212.5, subd. (c)); and counts 5-8 and 10-11, robberies of six customers who were in the store; and that each defendant personally used a firearm (§ 12022.5, subd. (a)). In count 9, they were charged with the robbery of a seventh customer, but the trial court accepted the prosecutor’s concession that both defendants were instead guilty of the lesser included offense of attempted robbery, with the enhancement that Sivongxxay personally inflicted great bodily injury on that victim (§ 12022.7, subd. (a)).

Robbery of the Sean Hong Jewelry Store and Murder of Song on December 19, 1996

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Song and his wife, Seak Ang Hor (Hor), owned the Sean Hong Jewelry store. Hor testified at trial and gave the following account of the robbery and murder of her husband.

On November 27, 1996, Sivongxxay went to the Sean Hong Jewelry store, and sold some rings and other jewelry to Hor for $340. He also left a Buddha pendant to be repaired. (Sivongxxay, supra, 3 Cal.5th at p. 159.)

On December 19, 1996, Sivongxxay again went to the Sean Hong Jewelry store.

(Sivongxxay, supra, 3 Cal.5th at pp. 159–160.) Mounsaveng entered the store about 10 minutes later, looked at a display case, and initially did not interact with Sivongxxay.

Song was in the rear of the store, repairing jewelry at a worktable. There was a video camera in the store that was concealed from view. Song activated the camera when Sivongxxay entered the store, and it kept filming during the robbery and murder, although it did not capture the entirety of the events.

Hor told Sivongxxay that the Buddha pendant had been repaired. Sivongxxay said he did not have the money yet. Mounsaveng then asked to look at the pendant.

Hor asked Song to get the pendant out of the safe, which was located inside a separate small room in the back of the store. Song went into the small room and unlocked the safe. He could not find the pendant and asked his wife to help him. She left the front of the store, went into the small room, and looked through the safe. The small room’s door was left ajar, which would have allowed the defendants to see the safe. Song and his wife found the pendant, closed and locked the safe, and both returned to the counter area. Sivongxxay said he did not want a female touching the pendant. Song removed the pendant from a plastic bag and gave it to Sivongxxay.

Sivongxxay looked at the pendant. Mounsaveng took the pendant from him and also looked at it. Sivongxxay and Mounsaveng gave it back to Song and said they did not have money yet.

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Song turned around to place the pendant on his worktable. Hor testified at that point, Mounsaveng was the first man to draw a gun, and pointed it at Song and “screamed ‘give the money and gold.’ ” Hor immediately pressed a foot button to activate the silent alarm. Sivongxxay then pulled his gun and pointed it at Hor.

Mounsaveng forced Song to the cash register. Both defendants then pushed Song and his wife into the small room that contained the safe. Mounsaveng grabbed Hor by her hair and dragged her to the safe at gunpoint, and she was forced to crawl on the floor.

Mounsaveng walked out of the small room and closed the door. Sivongxxay remained inside with Song and Hor, and he told Hor to open the safe. Song also told her to open it, but she was frightened and could not remember the combination.

At some point while the door to the small room was closed, Song tried to reach for Sivongxxay’s gun, and the two men engaged in a struggle. Mounsaveng returned to the small room and beat Song in the head with his gun, and Song screamed. (Sivongxxay, supra, 3 Cal.5th at p. 160.)

Defendants pulled the victims out of the small room into the main store. Hor crawled on the floor to the silent alarm button and pushed it again. Mounsaveng followed Hor, grabbed her shirt, and pulled her back. Hor testified the last time she saw her husband standing up, he was between Sivongxxay and Mounsaveng. She kicked the wall and hoped the proprietor of the business next door would hear her.

Mounsaveng said “ ‘let’s go’ ” to Sivongxxay. Hor pushed the button to open the security door so they could leave. Sivongxxay stood in front of Hor, pointed his gun at her, and said to give him money. She gave him cash from her purse. Sivongxxay used his gun to break the glass display case, grabbed jewelry out of it, and defendants left the store.

Mounsaveng and Sivongxxay stole approximately $30,000 to $40,000 in cash and jewelry.

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“After Mounsaveng and [Sivongxxay] left, Hor found her husband lying on the floor of the back room with blood coming out of his mouth.” (Sivongxxay, supra, 3 Cal.5th at p. 160.) The first officer at the scene testified Song was lying on his back, face-up, and his arms were above his head. “Song died within the hour. The cause of death was perforation of the heart and lungs from three gunshot wounds.” (Sivongxxay, supra, 3 Cal.5th at p. 160.)

Hor testified she “did not see either of the robbers shoot her husband, nor did she recall hearing the gunshots. However, the robbery was partially captured on the store’s video camera.” (Sivongxxay, supra, 3 Cal.5th at p. 160.)

“A Fresno Police Department detective testified that in reviewing a video of the incident, he could identify a moment when several gunshots were audible. At that moment, [Sivongxxay] and Song were not in the camera’s frame, but Mounsaveng and Hor were. Mounsaveng was pointing his gun toward the location where [Sivongxxay] and Song were fighting. After the shots were fired, Mounsaveng moved out of the frame and toward the back room, where [Sivongxxay] and Song had been fighting. Ballistics evidence showed that all of the bullets were fired from the same gun. In the video, one of the defendants is heard to say, ‘shoot, shoot.’ ” (Sivongxxay, supra, 3 Cal.5th at p. 160.)

Mounsaveng’s Trial Testimony About the Sean Hong Jewelry Store Robbery and Murder We will review the entirety of Mounsaveng’s trial testimony about his duress defense below but address herein his testimony about the robbery and murder at the Sean Hong Jewelry store.

Mounsaveng was shown still photographs from the store’s surveillance video, that showed him examining the Buddha pendant, laughing, and looking up at the store’s ceiling and walls. Mounsaveng confirmed that the video showed that he climbed on top of a couch and asked the owner’s wife about the price of a blanket that was displayed at

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the top of the wall. Mounsaveng claimed he was interested in buying the blanket even though he did not have any money. He denied that he was looking for security cameras.

Mounsaveng admitted he was the first person to draw his gun, and he pointed it at Song. He claimed Sivongxxay ordered him to do that. Mounsaveng admitted that he was the person on the store’s security video who said, “ ‘Don’t move, don’t move, I shoot you, I shoot you right now, get down, get down, get down.’ ” Mounsaveng testified he said that because he did not want anyone to get hurt. He also admitted that he pulled Song’s wife by her hair.

Mounsaveng testified he was standing by a showcase when he saw Sivongxxay fighting with Song. Mounsaveng identified Sivongxxay as the person heard on the video who said, “ ‘[s]hoot, shoot.’ ” Sivongxxay said that to him, and he was referring to Song. At that moment, Mounsaveng was only holding his own gun.

Mounsaveng testified he went to where Sivongxxay and Song were fighting. Both men were kneeling on the floor and fighting with their hands. Mounsaveng saw a gun on the floor near them. Mounsaveng believed Sivongxxay had dropped his gun during the struggle. Mounsaveng testified he “grabbed” the gun from the floor while he still held his own gun, and ran back to the showcase area.

Mounsaveng acknowledged the video showed him holding two guns.

Mounsaveng told Hor to come out from the back, and she stood up. Mounsaveng walked closer to the cash register area to see what Sivongxxay and Song were doing, and they were still fighting. As Mounsaveng looked at them, Sivongxxay “pulled” the second gun away from him.

Mounsaveng was scared and again ran across the showroom. He heard a lot of noise, but he was not sure if he heard gunshots.

After they left the store and returned to a residence, Mounsaveng saw blood on Sivongxxay’s clothes, and Sivongxxay said that he shot someone. Mounsaveng admitted he asked for and received money from the Sean Hong Jewelry store robbery.

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Based on this final incident, both defendants were charged and convicted of count 1, first degree murder of Song (§ 187) with the robbery/murder special circumstance found true (§ 190.2, subd. (a)(17)); count 2, robbery of Song (§§ 211, 212.5, subd. (c)); and count 3, robbery of Hor; with enhancements that both defendants personally used a firearm in the commission of counts 1-3. (§ 12022.5, subd. (a).)

Arrest of Defendants On February 5, 1997, police officers in Worthington, Minnesota received information that Mounsaveng was in the area. He was seen driving a vehicle with California license plates, and he pulled out a large quantity of $100 bills when he was at a gas station. The officers informed detectives at the Fresno Police Department, and an arrest warrant for Mounsaveng was issued.

On February 7, 1997, numerous police officers served the arrest warrant at a mobile home in Worthington where Mounsaveng was living. Khanthlay “Kathy” Sengphet, Mounsaveng’s girlfriend, walked out with their two young children. Mounsaveng walked out next, said he was “Pong Intavong,” and presented an identification card in that name with someone else’s photograph. Mounsaveng was arrested and taken into custody.

The officers searched the mobile home and Mounsaveng’s vehicle pursuant to warrants. There was a clip of ammunition “for a .25 auto” in the mobile home. There was one live nine-millimeter round in the vehicle, along with a clip loaded with seven rounds for an automatic weapon. The officers did not find any firearms.

Sivongxxay was arrested in Fresno on February 12, 1997. In subsequent pretrial interviews, he admitted that he shot Song. (Sivongxxay, supra, 3 Cal.5th at pp. 160–161.)

Mounsaveng’s Attempted Escape On February 18, 1997, two officers escorted Mounsaveng from Minnesota to Fresno for trial. As they were about to board an airplane at the Los Angeles International Airport for the last leg of their trip to Fresno, Mounsaveng broke away from the officers

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and ran across the airfield. The officers chased Mounsaveng and repeatedly yelled at him to stop, but Mounsaveng ignored their orders and kept running.

Mounsaveng ran approximately 250 to 300 yards across the airfield. He climbed over the airport’s perimeter fence, dropped to the other side, and was within 15 to 20 feet of heavy vehicle traffic on a major thoroughfare. As Mounsaveng was about to run toward the street, an officer fired and shot him three times.

When officers reached Mounsaveng, he was lying on the ground, wounded but alert, and spontaneously said, “ ‘I have just been shot by this asshole. I was just trying to get away.’ ”

Mounsaveng was shot in the spinal area, rib cage, and arm during his attempted escape. He was paralyzed and in a wheelchair.

MOUNSAVENG’S TRIAL TESTIMONY “In defending these charges, [Mounsaveng] did not contest his involvement in the robberies. Instead, [he] claimed he acted under duress. [Mounsaveng] outlined a sequence of events that precipitated his participation in both the charged and several uncharged robberies.” (Mounsaveng I, supra, F033224.)

“[Mounsaveng] testified that the coercion began in December 1995, approximately one year before the murder took place. While [Mounsaveng] and his girlfriend, Kathy Sengphet, were at the hospital with their youngest child, [Mounsaveng] received a telephone call from a man that he knew as ‘Turre.’ Turre asked [Mounsaveng] to meet him at a certain location. However, after [Mounsaveng] arrived there with his other young son, [Mounsaveng] was tied up and he and the child were kidnapped. Turre, an African-American man named ‘Frank’ and a third man [Mounsaveng] believed to be Sivongxxay drove [Mounsaveng] around in his car for approximately 90 minutes. [Mounsaveng] was asked if he had any money to pay a debt owed by his friend ‘Lut.’ [Mounsaveng] did not and he and his son were eventually released.” (Mounsaveng I, supra, F033224.)

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“[Mounsaveng] returned to the hospital and told Sengphet what had happened. At first Sengphet did not believe him. However, later that evening [Mounsaveng] and Sengphet saw the same three men standing near their house. Thereafter, Sengphet reported the matter to the police.” (Mounsaveng I, supra, F033224.)

“Following this kidnapping, [Mounsaveng] drove to Visalia and stayed with a friend. About two weeks later [Mounsaveng] returned to Fresno. However, [Mounsaveng] was afraid for himself and his family. [Mounsaveng] and Sengphet then moved to Portland, Oregon, to stay with [Mounsaveng’s] parents.” (Mounsaveng I, supra, F033224.)

Mounsaveng testified Turre found him “in Portland. On January 17, 1996, Turre and two other Asian men appeared at [Mounsaveng’s] parents’ house and asked [Mounsaveng] for money. [Mounsaveng] responded that he did not have any. The men then pointed a gun at [Mounsaveng] and told him to go with them. [Mounsaveng] refused and the men left. A short time later a car drove by and three or four shots were fired at the house.” (Mounsaveng I, supra, F033224.)

“A few weeks later [Mounsaveng] and Sengphet moved back to Fresno with their children. Then, around May 1996, Turre approached [Mounsaveng] again. Turre, Sivongxxay, and a third Asian man told [Mounsaveng] that they would contact him and he would have to help rob a store at that time. [Mounsaveng] testified he was scared so he answered ‘ “Yes, do not disturb my family, myself.” ’ ” (Mounsaveng I, supra, F033224.)

On cross-examination, however, Mounsaveng admitted he had known Sivongxxay for seven or eight years before the alleged kidnapping and threats. Mounsaveng also admitted that when he was previously living in Oregon, Sivongxxay provided a gun to him when he was arguing with another person.

Mounsaveng testified he had a prior conviction for felony theft in Oregon in 1989.

Mounsaveng’s codefendant in the Oregon theft case was Sivongxxay’s brother.

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Uncharged Robberies Mounsaveng testified that “Sivongxxay and two other men made contact with [him] about a month and a half later. They ordered [Mounsaveng] to accompany them while they robbed a store. [Mounsaveng] agreed to act as the getaway driver because he was afraid.” (Mounsaveng I, supra, F033224.) When they arrived at the store, the two men got out and told Mounsaveng to stay in the car. They returned with guns and money, and told him to drive away. They also told him not to talk about what happened. Mounsaveng was not charged with this robbery. (Ibid.)

One or two weeks later, Sivongxxay and another man contacted Mounsaveng and again told him to drive the car while they committed a robbery, or they would hurt his family. Mounsaveng drove the car, the men went into the store, and they returned with guns and money. He did not receive any of the proceeds. Mounsaveng was not charged with this robbery. (Mounsaveng I, supra, F033224.)

Mounsaveng admitted he did not call the police between or after the two uncharged robberies, even anonymously, to report the alleged threats against him.

Charged Robberies “With respect to the charged robberies, [Mounsaveng] testified that his involvement was forced through fear. He further claimed that his gun was unloaded and that he never received any of the cash or loot.” (Mounsaveng I, supra, F033224.)

Mounsaveng admitted that during the attempted robbery at the Thanh Tin Jewelry store, he grabbed and pulled someone by the collar, but insisted that he did not want to hurt that person.

Mounsaveng admitted he went to the Phnom Penh Jewelry store in August 1996, and left a charm for repair. In October 1996, Mounsaveng returned with Sivongxxay to rob the store, and admitted that he hit, kicked, and pushed down a victim, but he did that so the person would not get shot. He also asked a victim for the video from the store’s surveillance camera. He claimed Sivongxxay told him to do these things.

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Mounsaveng testified he committed the second robbery at the JMP Mini-Mart on December 14, 1996, because Sivongxxay threatened him and pointed his gun at him during the robbery. Mounsaveng admitted he took the victim’s handgun but he didn’t know if that weapon was loaded. He apologized for grabbing one of the victims, and claimed he didn’t know if Sivongxxay kicked anyone.

As for the Sean Hong Jewelry store robbery on December 19, 1996, Mounsaveng again testified he committed the offense because Sivongxxay threatened him and his family, and he was given an unloaded gun. He acknowledged that his girlfriend and their children were living in Minnesota by that time, but he had other family in Fresno.

Mounsaveng was asked if he heard the prosecution’s evidence about Sivongxxay’s post-arrest statement, where Sivongxxay claimed Mounsaveng forced him to commit the robberies and the homicide. Mounsaveng testified that was not true.3

Arrest and Attempted Escape

3 At trial, the prosecution introduced Sivongxxay’s post-arrest statements, where he “initially denied involvement in the robberies. However, after the detective showed him stills from the Sean Hong Jewelry store’s video camera, [Sivongxxay] admitted he took part in the robbery. At first, he claimed Mounsaveng was the one who shot Henry Song. [Sivongxxay] described his struggle with Song and claimed that Song hit him on the head with a chair. But when the detective asked how the struggle ended, [Sivongxxay] confessed that he, not Mounsaveng, had shot Song. He apologized for lying at the outset of the interview and said he was sorry to Song’s family for what he had done. [Sivongxxay] also told the detective that Mounsaveng forced him to rob the Sean Hong Jewelry store and that he was so high on cocaine that day he could hardly think.” (Sivongxxay, supra, 3 Cal.5th at pp. 160–161.)

The trial court held the entirety of Sivongxxay’s post-arrest statements were admissible against him. As to Mounsaveng’s case, the trial court stated it would only consider Sivongxxay’s admission that he was the shooter. The court stated it would not consider the rest of Sivongxxay’s post-arrest statements against Mounsaveng. During the prosecutor’s cross-examination of Mounsaveng, the court permitted the prosecutor to ask about the credibility of Sivongxxay’s claim that Mounsaveng forced him to commit the robberies.

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Mounsaveng testified that “[f]ollowing the murder, [he] fled to Los Angeles because he was scared. From there he went to Minnesota to join Sengphet and the children. Sengphet had been in Minnesota since September [1996].” (Mounsaveng I, supra, F033224.)

Mounsaveng testified that on the day of his arrest in Minnesota, someone called the mobile home and said the police were outside and to come out with his hands up. He told his girlfriend to go out first and identify him with a false name because he was afraid, he didn’t want to talk to the police, and he knew he had an outstanding warrant for theft in Oregon.

After he was arrested, Mounsaveng was told that he murdered someone.

Mounsaveng ran away at the Los Angeles airport because he was scared and missed his family.

Sengphet’s Testimony Kathy Sengphet, the mother of Mounsaveng’s children, testified for the defense and corroborated most of his story.

Sengphet testified that in September 1996, she left Mounsaveng and took the children to live in Minnesota to get away from the threats. She admitted Mounsaveng had been with another woman in Fresno, and she moved because of domestic problems. Mounsaveng arrived in Minnesota in December 1996, and told Sengphet that he was in trouble and had done something bad. Sengphet never saw Sivongxxay in Minnesota. On further examination, Sengphet testified Mounsaveng arrived in Minnesota in January 1997, a few weeks before he was arrested, and said he wanted to be with her and the children.

Sengphet testified that on the day that Mounsaveng was arrested, he answered a telephone call at their mobile home. After he finished the call, Mounsaveng told Sengphet that someone was coming to arrest him, she should say that he was not there, and she should falsely identify him as “Pong Intavong.” Mounsaveng told Sengphet to

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walk out with the children and he would follow her. When the police arrived, Sengphet walked out and said the man in the trailer was “Pong Intavong.” Sengphet admitted she pleaded guilty to a felony for falsely identifying Mounsaveng.

Sengphet claimed the ammunition clip found in the mobile home belonged to her.

She could not remember what she told an officer about the clip.

The parties stipulated that after Mounsaveng was arrested, Sengphet told an officer in Minnesota that the ammunition clip found in the mobile home belonged to Mounsaveng and not to her. She also told an officer that three months before he was arrested, Mounsaveng visited her in Minnesota, stayed one week, went back to California, and then returned.

TRIAL COURT’S FINDINGS AND VERDICTS On March 11, 1999, the trial court found both defendants guilty of count 1, first degree murder of Song with the robbery/murder special circumstance found true, and that each personally used a firearm (§ 12022.5, subd. (a)).

The court found beyond a reasonable doubt that Sivongxxay was guilty of first degree murder with the robbery/felony murder special circumstance, based on both his admission that he was the actual killer, and scenes from the store’s surveillance video.

“You reach a point in the tape where the first of the three shots can be heard. When I say the first of the three, there are three shots, one and then two others more rapid, all – in the confusion of all the banging and clanging and various sounds, those three are of an identical nature in my opinion and are clearly the shots.

“But in reaching this factual determination, Mr. Mounsaveng is clearly in the frame and across the room with the female victim when the first shot is fired. He also appears to react to that shot by turning back towards the employee area of the store with his gun in his hand, and then moves out of [the] frame when the next two shots are fired. [¶] This, coupled with the voluntary, knowing and intelligent waiver and statement by Mr. Sivongxxay to Detective Wells that he shot the victim, establishes in my mind clearly without reasonable doubt that [Sivongxxay] fired the shots.”

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The trial court found Mounsaveng was guilty of first degree murder with the robbery/felony murder special circumstance because he was a “willing” and major participant who acted with reckless indifference to human life.

“The pattern of robberies in this case—the pattern of robberies that he participated in … the carrying of weapons thought to be either unloaded not known to be loaded or unloaded, the willingness to do harm in the pattern of robberies through physical forces exerted on victims and witnesses, clearly shows a reckless indifference to human life.” The trial court also found both defendants were guilty of the robberies in counts 2-

8 and 10-15; and attempted robberies in counts 9 and 16. The court found true the firearm and great bodily injury enhancements attached to those counts. (Sivongxxay, supra, 3 Cal.5th at pp. 158–161.)

Findings on Duress Defense As to all counts, the trial court held there was insufficient evidence to support Mounsaveng’s duress defense and his trial claims that he was forced by Sivongxxay and “Turre” to commit the robberies and murder:

“[I]n between the time of those uncharged robberies that [Mounsaveng] testified to and … the first charged offense in this case, he had ample opportunity to alert authorities to protect himself and his family, long periods of time unaccompanied by any other persons who were in a position to threaten him or his family with any imminent peril or danger.” The trial court also held there was insufficient evidence to support the duress defense as to Sivongxxay, to the extent Sivongxxay raised it in his post-arrest statements that he committed the offenses because Mounsaveng threatened him.

Sentences After conducting the penalty phase, the court sentenced Mounsaveng to 53 years for counts 2-16 and the enhancements, plus an LWOP term for first degree murder with the special circumstance. Sivongxxay was sentenced to death.

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DEFENDANTS’ DIRECT APPEALS In his direct appeal, Mounsaveng argued the trial court improperly rejected his duress defense to the robberies and murder by erroneously using the preponderance of the evidence standard. (Mounsaveng I, supra, F033224.) We agreed but held the error was harmless beyond a reasonable doubt because the trial court “specifically limited this finding to the uncharged robberies. Thus, this error could not have contributed to the verdict.” (Ibid.) The error was also harmless as to the charged offenses because the trial court “determined it was clear that between the time of the uncharged robberies and the first charged robbery [Mounsaveng] ‘had ample opportunity to alert authorities to protect himself and his family, long periods of time unaccompanied by any other persons who were in a position to threaten him or his family with any imminent peril or danger,’ ” and “it is this finding that establishes beyond a reasonable doubt that the trial court’s application of the incorrect burden of proof did not contribute to the verdict.” (Ibid.)

“[T]he trial court’s finding that [Mounsaveng] had the opportunity to alert the authorities condemns [his] duress defense. He had the ability to refuse to participate in the robberies and to avoid the threatened harm. Under these circumstances, the trial court’s application of an incorrect burden of proof to [his duress] defense is inconsequential. The existence of reasonable and legal options alone caused [his] defense to fail.” (Mounsaveng I, supra, F033224.)4 In 2017, the California Supreme Court rejected Sivongxxay’s challenges to the validity of his waivers to jury trials for the guilt and penalty phases, and affirmed the judgment. (Sivongxxay, supra, 3 Cal.5th at pp. 157, 164, 199.)

PETITION FOR RESENTENCING On July 20, 2023, Mounsaveng, in propria persona, filed a petition in the trial court for resentencing of his murder conviction and LWOP term pursuant to section

4 After notice and without objection, this court also takes judicial notice of In re Mounsaveng (Feb. 8, 2018, F076835 [nonpub. order]; In re Mounsaveng (Mar. 19, 2020, F080085) [nonpub. order]; and In re Mounsaveng (Jun. 30, 2021, F082481) [nonpub. order], where his petitions based on his renewed duress arguments were denied by the trial court and this court.

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1172.6 and the amendments enacted by Senate Bill 1437. Mounsaveng alleged that he was not the shooter, he did not act with the intent to kill, his gun was unloaded, and he was forced to commit the crimes because of duress and threats against his family. Mounsaveng admitted that at the time of the crimes, he was a “no good dirty and really wrong person” and “wrong in every way,” but he had changed and become a better person through mental health and religious programming in prison. The court appointed counsel.

The People conceded Mounsaveng’s petition stated a prima facie case. The court accepted the People’s concession and issued an order to show cause for an evidentiary hearing.

EVIDENTIARY HEARING

The Parties’ Briefs The People filed a brief for the evidentiary hearing and moved for introduction of the trial transcript into evidence.

The People argued Mounsaveng was still guilty of first degree murder with the special circumstance because the trial evidence undermined his duress claim. He participated in five different charged robberies over six months and had numerous opportunities to stop. Mounsaveng knew Sivongxxay was dangerous and continued to perform robberies with him. Mounsaveng initiated the violence at the Sean Hong robbery when he drew his firearm first, he dragged Song’s wife by her hair, and he beat Song in the head with his gun. He did nothing to minimize the violence against both Song and his wife. He immediately fled the store after Song was killed and did not render aid. While Mounsaveng claimed he was always given unloaded firearms, the police found ammunition in his vehicle when he was arrested in Minnesota, and Mounsaveng admitted he received profits from the robbery of Song’s store.

Mounsaveng’s counsel also filed a brief for the evidentiary hearing. Mounsaveng relied on his trial testimony and again argued that he committed the offenses under

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duress, he had an unloaded weapon which minimized the risk of harm, no one fired any gunshots during the prior robberies, he never had the opportunity to alert the police because he was constantly under Sivongxxay’s threats, and he was not a major participant who acted with reckless indifference as defined by Banks and Clark.

The Court’s Hearing On November 22, 2024, the trial court convened the evidentiary hearing.

Mounsaveng’s counsel argued he was likely in possession of ammunition in Minnesota to protect himself if Sivongxxay tried to eliminate him as a potential witness to the murder. The court granted the People’s motion to introduce the trial transcripts and took the matter under submission.

The Court’s Denial of the Petition On January 17, 2025, the trial court convened a hearing and stated it had “carefully reviewed and considered” the trial transcript, the parties’ briefs, and their arguments. The court reviewed Mounsaveng’s duress defense and the Banks and Clark factors, and denied his petition.

The court held Mounsaveng was still guilty of first degree murder with the robbery/felony murder special circumstance after the amendments enacted by Senate Bill 1437, because he was a major participant who acted with reckless indifference to human life.

“The court[’s] evaluation of the totality of the circumstances in this case supports a finding that Mounsaveng was indeed a major participant in the robbery and senseless killing of Mr. Song. Specifically, Mounsaveng played a major role in the offenses. He personally participated in five separate robberies. Moreover, although Mounsaveng claims that this firearm was not loaded, he nevertheless was personally armed with a firearm during each robbery. During the December 19, 1996 robbery that led to Henry Song’s untimely death, Mounsaveng initiated the violence against both Henry Song and his wife. Moreover, Mounsaveng drew his firearm during this offense. Furthermore, there is no evidence that he did anything to mitigate or prevent the violence.

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“Mounsaveng was also clearly aware of the danger posed by these offenses. Certainly, a robbery facilitated with a firearm is inherently dangerous. Mounsaveng was also aware that his codefendant was extremely violent. Finally, after the robbery and murder of Henry Song, Mounsaveng fled the scene without any attempt to render aid or even call 911. For all of these reasons, the totality of the circumstances reveals that Mounsaveng was indeed a major participant in the murder and robberies.”

The court found appellant acted with reckless indifference to human life. It acknowledged Mounsaveng’s participation “was not as violent” as the defendants in other Banks/Clark cases, but he was also “not as passive.”

“Given the totality of the circumstances, this court finds that Mounsaveng did in fact act with reckless indifference to human life. Specifically, during the course of the charged robberies that occurred over a five-month period, both Mounsaveng and [Sivongxxay] were always personally armed with firearms. Furthermore, Mounsaveng was present when Sivongxxay shot and killed Henry Song. Further still, Mounsaveng actually initiated the violence and drew his firearm and forced Henry Song to the cash register before Sivongxxay fired the lethal shot. After the shooting, Mounsaveng fled the scene without rendering aid or calling 911. The evidence clearly establishes that Mounsaveng was indeed an active participant in the subject robberies and the murder of Henry Song.”

On January 24, 2025, Mounsaveng filed a timely notice of appeal.

DISCUSSION

As explained above, appellate counsel filed a brief with this court pursuant to Wende and Delgadillo. The brief also included counsel’s declaration that Mounsaveng was advised he could file his own brief with this court.

In response to this court’s invitation to file a supplemental letter brief, Mounsaveng requested appointment of another appellate counsel, and filed most of the brief that his counsel filed with the trial court prior to the section 1172.6 evidentiary hearing. By doing so, he again asserts that he was not a major participant, he did not intend to kill, he did not act with reckless disregard, he participated in all the robberies and was present during the murder because Sivongxxay threatened him, and he acted under duress.

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I. Request for New Appellate Counsel Mounsaveng asserts this court must appoint another attorney to represent him in this appeal because appellate counsel filed a brief pursuant to Delgadillo and Wende. He complains appellate counsel had “little to no interest in litigating [the] case” and counsel was unwilling to conduct interviews, discuss the law presented in the trial court, or argue the facts or law on his behalf.

Delgadillo held that in an appeal from the denial of a section 1172.6 petition, “[w]hen appointed counsel finds no arguable issues to be pursued on appeal: (1) counsel should file a brief informing the court of that determination, including a concise recitation of the facts bearing on the denial of the petition; and (2) the court should send, with a copy of counsel’s brief, notice to the defendant, informing the defendant of the right to file a supplemental letter or brief and that if no letter or brief is filed within 30 days, the court may dismiss the matter.” (Delgadillo, supra, 14 Cal.5th at pp. 231–232.) “If the defendant subsequently files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion. The filing of a supplemental brief or letter does not compel an independent review of the entire record to identify unraised issues. [Citations.] ... While it is wholly within the court’ s discretion, the Court of Appeal is not barred from conducting its own independent review of the record in any individual section 1172.6 appeal.” (Id. at p. 232.)

In this appeal, Mounsaveng responded to this court’s Delgadillo notice and filed a supplemental brief. We will address the issues raised in his supplemental brief below and, in an abundance of caution, exercise our discretion to conduct our own independent review of the record.

As to Mounsaveng’s complaints that appellate counsel refused to investigate or conduct interviews, “ ‘[t]he purpose of section [1172.6] is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to

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provide a do-over on factual disputes that have already been resolved.’ ” (People v. Farfan (2021) 71 Cal.App.5th 942, 947.) Section 1172.6 does not permit “ ‘litigat[ing] anew’ any trial issues or allowing ‘a petitioner to challenge any aspect of the factfinding from the original trial that he or she wishes to revisit.’ ” (People v. Curiel (2023) 15 Cal.5th 433, 470.)

Mounsaveng’s request for appointment of a new appellate attorney is denied.

II. Section 1172.6 In his supplemental letter brief, Mounsaveng argues the trial court improperly denied his section 1172.6 petition after the evidentiary hearing because he is no longer guilty of murder after the amendments enacted by Senate Bill 1437.

As explained above, Senate Bill 1437 amended the felony murder rule “ ‘to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.’ ” (Hill, supra, 100 Cal.App.5th at p. 1065.)

Section 1172.6 permits a petitioner convicted under the former version of the felony murder rule to file a petition to have the conviction vacated and to be resentenced if the following conditions apply:

“(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’ s participation in a crime, or attempted murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder. [¶] (3) The petitioner could not presently be convicted of murder or attempted murder because of changes to [s]ection 188 or 189 made effective January 1, 2019.” (§ 1172.6, subd. (a).)

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“Upon the filing of a facially sufficient resentencing petition under section 1172.6, the superior court must conduct a prima facie analysis with briefing to determine the petitioner’s eligibility for relief, and, if the requisite prima facie showing is made, issue an order to show cause.” (Hill, supra, 100 Cal.App.5th at p. 1065.)

“At the evidentiary hearing following issuance of an order to show cause, the superior court acts as an independent fact finder, and the prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is guilty of murder or attempted murder under California law following Senate Bill No. 1437’s amendments. [Citations.] The petitioner and the prosecutor may offer new or additional evidence, and the court may consider evidence ‘previously admitted at any prior hearing or trial that is admissible under current law,’ including witness testimony.” (Hill, supra, 100 Cal.App.5th at p. 1065.) This includes the transcript of the petitioner’s trial that resulted in his homicide conviction. (Cody, supra, 92 Cal.App.5th at p. 104.)

The focus at the evidentiary hearing is on evidence made relevant by the amendments to the substantive definition of murder which, in the context of Mounsaveng’s petition, required the prosecution to prove beyond a reasonable doubt that he was a major participant who acted with reckless indifference to human life. (People v. Vargas (2022) 84 Cal.App.5th 943, 952 (Vargas).) “[T]he trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard.” (People v. Clements (2022) 75 Cal.App.5th 276, 298.)

If the trial court “finds beyond a reasonable doubt that the petitioner is guilty of murder notwithstanding the amendments to sections 188 and 189, the petitioner is ineligible for relief under section 1172.6.” (Vargas, supra, 84 Cal.App.5th at p. 951.)

“On appeal from the denial of a section 1172.6 petition after an evidentiary hearing, we review the superior court’s factual findings for substantial evidence and the court’s application of the law to those facts de novo. [Citation.] In conducting our

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review, we consider the whole record in the light most favorable to the superior court's findings [citation], and we presume ‘ “ ‘every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.’ ” ’ [Citation.] We ask ‘whether substantial evidence, defined as reasonable and credible evidence of solid value, has been disclosed, permitting the trier of fact to find guilt beyond a reasonable doubt.’ [Citation.] And based on this whole record review, we ‘ “determine whether any rational trier of fact could have found the essential elements of the crime ... beyond a reasonable doubt.” ’ [Citation.] Finally, our Supreme Court has held that whether the prosecutor relied upon direct or circumstantial evidence, if the trier of fact’s determination is supported, reversal is not warranted, even where ‘ “ ‘the circumstances might also reasonably be reconciled with a contrary finding.’ ” ’ ” (Hill, supra, 100 Cal.App.5th at p. 1066.)

III. Duress and Murder Mounsaveng again relies on his trial testimony about his alleged duress defense to argue that he was not a major participant and did not act with reckless indifference as defined by Banks and Clark, because he was forced to perform the crimes as a result of Sivongxxay’s threats. We thus review his duress claim.

A. Murder, Felony Murder, and Duress “[F]ear for one’s own life does not justify killing an innocent person. Duress is not a defense to murder.… [D]uress cannot reduce murder to manslaughter. Although one may debate whether a killing under duress should be manslaughter rather than murder, if a new form of manslaughter is to be created, the Legislature, not this court, should do it.” (People v. Anderson (2002) 28 Cal.4th 767, 770.) “A person can always choose to resist rather than kill an innocent person. The law must encourage, even require, everyone to seek an alternative to killing. Crimes are often committed by more than one person; the criminal law must also, perhaps especially, deter those crimes.” (Id. at p. 777.)

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“Although ‘duress is not a defense to any form of murder,’ [citation] ‘duress can, in effect, provide a defense to murder on a felony-murder theory by negating the underlying felony. [Citations.] If one is not guilty of the underlying felony due to duress, one cannot be guilty of felony murder based on that felony.’ ” (People v. Wilson (2005) 36 Cal.4th 309, 331; People v. Anderson, supra, 28 Cal.4th at p. 784.)

While duress is not a defense to murder, Mounsaveng’s duress claim at the section 1172.6 evidentiary hearing was potentially cognizable since he was charged and convicted of first degree murder based on the robbery/felony murder special circumstance.

B. Duress “Duress is available as a defense to defendants who commit a crime ‘under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.’ [Citations.] An essential component of this defense is that the defendant be faced with a direct or implied demand that he or she commit the charged crime.” (People v. Saavedra (2007) 156 Cal.App.4th 561, 567.)

“Because the defense of duress requires a reasonable belief that threats to the defendant’s life (or that of another) are both imminent and immediate at the time the crime is committed [citations], threats of future danger are inadequate to support the defense.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 100; People v. Heath (1989) 207 Cal.App.3d 892, 900 (Heath).) “The person being threatened has no time to formulate what is a reasonable and viable course of conduct nor to formulate criminal intent.” (Heath, supra, 207 Cal.App.3d at p. 900.) “[A] person committing a crime under duress has only the choice of imminent death or executing the requested crime.” (People v. Condley (1977) 69 Cal.App.3d 999, 1012.)

The immediacy requirement of duress negates an element of the crime—the intent to commit the act. (Heath, supra, 207 Cal.App.3d at p. 901.) “ ‘[I]f there was a reasonable, legal alternative to violating the law, “a chance both to refuse to do the

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criminal act and also to avoid the threatened harm,” ’ ” then the duress defense fails. (Id. at p. 900.)

The trier of fact may consider a defendant’s duress defense “if there is substantial evidence of the defense and it is not inconsistent with the defendant’s theory of the case.” (People v. Wilson, supra, 36 Cal.4th at p. 331.)

C. Analysis At his bench trial, Mounsaveng testified that he acted under duress when he committed all the crimes in this case because of the alleged threats from Sivongxxay and/or his associates to harm Mounsaveng and his family if he did not commit the uncharged and charged robberies, and those threats continued before he entered the Sean Hong Jewelry store. The trial court rejected Mounsaveng’s credibility about his duress defense because “in between the time of those uncharged robberies that [Mounsaveng] testified to and … the first charged offense in this case, he had ample opportunity to alert authorities to protect himself and his family, long periods of time unaccompanied by any other persons who were in a position to threaten him or his family with any imminent peril or danger.”

At his section 1172.6 evidentiary hearing, Mounsaveng reasserted his duress defense by relying on his trial testimony. The trial court found Mounsaveng was an active, willing, and major participant who acted with reckless indifference to human life in the robberies, and the final robbery and murder of Song. By doing so, the court impliedly rejected his credibility about his duress defense.

On appeal, Mounsaveng again raises his duress defense and the claims that Sivongxxay and/or his associates allegedly threatened to harm Mounsaveng and his family if he refused to commit the crimes, they always gave him an unloaded gun to hold during the crimes, the prosecution never proved that he was holding a loaded weapon during any of the robberies or the murder, he never had an opportunity to withdraw or

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seek assistance because of the alleged threats, and his possession of an unloaded gun refutes any intent to kill, being a major participant, or acting with reckless indifference.

The trial court’s implied rejection of Mounsaveng’s credibility about his purported duress defense is supported by substantial evidence. As explained above, “a person committing a crime under duress has only the choice of imminent death or executing the requested crime.” (People v. Condley, supra, 69 Cal.App.3d at p. 1012.) Based on Mounsaveng’s own version of events, however, he had multiple opportunities to formulate a viable course of conduct that did not include committing the crimes. Even if Mounsaveng’s description of the events is credible, there were lengthy periods between each crime when Sivongxxay and/or his alleged associates did not approach, bother, or threaten Mounsaveng and his family in any way. Mounsaveng testified one or two weeks passed between the first and second uncharged robberies. He admitted that he did not call the police, even anonymously, between the first and second uncharged robberies, or after the second uncharged robbery, to report the alleged threats on his life.

Mounsaveng never testified that Sivongxxay threatened him every day or between each crime. He thus had numerous opportunities to withdraw or seek assistance between the second uncharged robbery and the first charged offense, which was the attempted robbery of the Thanh Tinh Jewelry store on July 31, 1996, and between each subsequent offense—the first robbery of JMP Mini-Mart on August 16, 1996, the robbery of Phnom Penh Jewelers on October 10, 1996, the second robbery of the JMP Mini-Mart on December 14, 1996, and their final robbery on December 19, 1996, at the Sean Hong Jewelry store that ended with Song’s murder.

Mounsaveng’s own conduct also undermined the credibility of his testimony about the alleged duress. He frequently took the lead to scout robbery locations, and committed violent acts against unresisting victims on his own volition. During the attempted robbery of the Thanh Tin Jewelry store in July 1996, Mounsaveng walked into the store by himself, looked at merchandise, left, returned with Sivongxxay an hour later, waited

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around, and left again. When they returned, Mounsaveng was the first person to pull a gun, he grabbed the owner’s wife by her collar, and pointed his gun at her. During the first robbery of the JMP Mini-Mart in August 1996, Mounsaveng again acted as scout and checked out the store to determine if they cashed checks. He returned with Sivongxxay, they waited around until the owner returned from the bank, and then they produced their guns and robbed the market.

Before they committed their next robbery at Phnom Penh Jewelry, Mounsaveng again acted as scout when he went to the store in August 1996, and asked the owner to repair the Buddha pendant. He returned to that store with Sivongxxay in October 1996, asked the owner to repair the pendant, and they committed the robbery. Mounsaveng joined Sivongxxay in punching, kicking, and stomping the owner after they tied him up. Mounsaveng confronted the owner’s wife and demanded the video from the store’s surveillance camera, raising the inference that he had noticed the video camera during his initial visit to the store, but he did not realize the camera was not working.

Mounsaveng’s duress defense was also based on his claim that he was always given an unloaded gun to hold during the robberies, and Sivongxxay threatened him to perform certain acts during the offenses. His credibility on these points is undermined by his own testimony since he admitted possession of other firearms during some of the robberies. During the second robbery of the JMP Mini-Mart on December 14, 1996, he grabbed the store owner’s handgun and thus had the means to effectuate his own escape from Sivongxxay’s alleged threats. Instead, Mounsaveng continued with the robbery, pushed the owner into the back room, took cigarettes and money, and joined Sivongxxay in robbing the customers in the store.

For the Sean Hong Jewelry store robbery, Sivongxxay and Mounsaveng again used the ruse of presenting the Buddha pendant for repair. During the robbery, Sivongxxay struggled with Song, and Mounsaveng admitted Sivongxxay told him to “ ‘[s]hoot, shoot.’ ” Mounsaveng testified that when Sivongxxay told him to shoot,

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Mounsaveng was only holding the gun that Sivongxxay allegedly gave him. Sivongxxay’s order constituted circumstantial evidence that he knew Mounsaveng was carrying a loaded firearm.

Mounsaveng testified he watched as Sivongxxay continued to struggle with Song, and he picked up Sivongxxay’s own gun which he apparently dropped during the struggle. Once again, Mounsaveng possessed a gun that was obviously loaded, Sivongxxay was unarmed, and he could have left the store. He remained in the store, however, and allowed Sivongxxay to retrieve his gun, which Sivongxxay used to fatally shoot Song. Mounsaveng admitted he asked for and received his share of the proceeds from this robbery, even after Sivongxxay said he shot someone.

Mounsaveng’s conduct after the murder of Song is further evidence that he was not acting under duress. Mounsaveng testified his girlfriend and children moved to Minnesota to avoid the alleged threats. However, his girlfriend testified that she moved with the children to Minnesota in September 1996, and admitted there were domestic problems between them. Mounsaveng claimed he committed the two robberies in December 1996 to keep his family safe, but his girlfriend and children were already living in Minnesota by then, and his girlfriend testified she never saw Sivongxxay there. The girlfriend also testified that Mounsaveng arrived in Minnesota in December 1996, and said he had done something bad and he was in trouble.

When the police arrived at the mobile home in Minnesota to arrest Mounsaveng, he instructed his girlfriend to walk out and identify him by a false name, and she followed his directions. He continued the farce by presenting an identification card to the police with that same false name. Moreover, ammunition was found in the mobile home and the car, and his girlfriend stated the ammunition belonged to Mounsaveng.

There is thus substantial evidence to support the trial court’s obvious rejection of the credibility of Mounsaveng’s trial testimony that he acted under duress at all times, including during the crimes he committed at the Sean Hong Jewelry store.

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IV. Mounsaveng Was a Major Participant Who Acted With Reckless Indifference We now turn to Mounsaveng’s claims that he was no longer guilty of felony murder after the amendments enacted by Senate Bill 1437 because he was not a major participant and he did not act with reckless indifference to human life.

As explained above, Senate Bill 1437 amended section 189 to “limit[] liability under a felony-murder theory principally to ‘actual killer[s]’ [citation] and those who, ‘with the intent to kill,’ aid or abet ‘the actual killer in the commission of murder in the first degree’ [citation]. Defendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were ‘major participant[s] in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of … Section 190.2’ — that is, the statute defining the felony-murder special circumstance.” (Strong, supra, 13 Cal.5th at p. 708.)

Section 190.2, subdivision (d), the felony-murder special-circumstances statute, “identifies the circumstances under which murderers and accomplices can be punished by death or life imprisonment without parole. Participating in a murder during a robbery is one of these circumstances.” (People v. Douglas (2020) 56 Cal.App.5th 1, 7; People v. Emanuel (2025) 17 Cal.5th 867, 881 (Emanuel).) “For defendants who did not kill and lacked intent to kill, section 190.2, subdivision (d) permits such punishment only if they acted ‘with reckless indifference to human life and as a major participant’ to a qualifying felony like robbery.” (People v. Douglas, supra, 56 Cal.App.5th at p. 7.)

“The statute, by its text, imposes an actus reus requirement, major participation in the enumerated felony, and a mens rea requirement, reckless indifference to human life.” (In re Scoggins (2020) 9 Cal.5th 667, 674 (Scoggins).)

A. Banks and the “Major Participant” Factors “To guide the ‘fact-intensive, individualized inquiry’ into where a defendant’s conduct falls on the spectrum of culpability [citations], in Banks we identified a list of

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considerations relevant to the major participant prong.” (Emanuel, supra, 17 Cal.5th at p. 883.)

Banks listed the following factors: “What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?” (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.)

“No one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant’s participation ‘in criminal activities known to carry a grave risk of death’ [citation] was sufficiently significant to be considered ‘major’ [citations].” (Banks, supra, 61 Cal.4th at p. 803.)

B. Analysis There is substantial evidence to support the trial court’s finding at the section 1172.6 evidentiary hearing that Mounsaveng played a major, willing, and active role in all the robberies, and did so during the robbery and murder of Song.

One of the Banks factors posits “[w]hat awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants.” (Banks, supra, 61 Cal.4th at p. 803, italics added.) Mounsaveng admitted he committed a series of robberies with Sivongxxay between July and December 1996, and perhaps even before that with the uncharged offenses. He had an awareness of the particular dangers posed by the nature of these robberies based on these past experiences, yet continued to commit additional robberies.

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Mounsaveng participated in planning the robberies and frequently acted as the scout to case the stores, look at the merchandise, and even check for video cameras. While Mounsaveng claimed Sivongxxay always gave him an unloaded gun to use during the robberies, Mounsaveng was often the first to pull out his gun to initiate the robberies, acting independently and before Sivongxxay pulled his own firearm, which again appeared consistent with a plan. Mounsaveng used physical force and violence on his own volition against the unresisting victims. At the Thanh Tin Jewelry store, he grabbed the collar of the owner’s wife, and at the Phnom Penh Jewelry store, Mounsaveng joined Sivongxxay as they both punched the owner and tied him up, even though the owner was complying with their orders.

Mounsaveng was also aware of the “particular dangers” posed by Sivongxxay’s commission of the robberies, and that Sivongxxay engaged in violence against unresisting victims. At the first robbery of the JMP Mini-Mart, the owner obeyed Sivongxxay’s instructions to get on the floor and did not resist, yet Sivongxxay repeatedly kicked the owner in the head, and delivered one final kick as he left the store. During the second robbery of the same store, Sivongxxay kicked an elderly customer in the mouth.

By the time Mounsaveng entered the Sean Hong Jewelry store, he knew exactly what to do and performed his role in tandem with Sivongxxay. This time, Sivongxxay went into the store first, ostensibly to pick up a repaired pendant, similar to the ruse they used at the Phnom Penh Jewelry store. Mounsaveng entered the store separately, looked at the walls and ceiling, and even climbed up on a sofa to ask about a certain item on display. In doing so, he engaged in behavior consistent with looking for surveillance cameras, similar to when he demanded the video from the security camera at the Phnom Penh Jewelry store.

Once Sivongxxay lured Song into the front part of the store, purportedly to avoid having a woman touch the pendant, Mounsaveng initiated the robbery by being the first

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perpetrator to pull his gun on Song, and demanded money and the gold. There is no evidence that Mounsaveng did anything to mitigate or prevent the violence. Indeed, Mounsaveng did not passively stand by and watch Sivongxxay commit the robbery. Instead, Mounsaveng acted on his own initiative and grabbed Song’s wife by the hair and dragged her into the room where the safe was located, and he used his gun to beat Song in the head when Song attempted to resist Sivongxxay.

Sivongxxay entered the Sean Hong Jewelry store in possession of his own firearm and used that gun to fatally shoot Song. Mounsaveng was not sitting outside in a getaway car, but he was present in the store when Sivongxxay killed Song and Mounsaveng played a major role in the murder. Mounsaveng testified Sivongxxay was struggling with Song and dropped his gun. Mounsaveng testified he picked up Sivongxxay’s gun from the floor. Mounsaveng admitted he allowed Sivongxxay to take back that gun.

Mounsaveng was thus in a position to prevent the murder and escape with the stolen items. Instead, he allowed Sivongxxay to take back the gun and waited for Sivongxxay. Mounsaveng testified he heard noise and claimed he did not realize Sivongxxay shot Song until Sivongxxay said something about it later. Based on the trial evidence, however, he was not a mere bystander. At the time that several gunshots were audible on the store’s surveillance video, Mounsaveng “was pointing his gun toward the location where [Sivongxxay] and Song were fighting. After the shots were fired, Mounsaveng moved out of the frame and toward the back room, where [Sivongxxay] and Song had been fighting.” (Sivongxxay, supra, 3 Cal.5th at p. 160.)

Mounsaveng’s own actions after the murder also support his role as a major participant. Mounsaveng admitted he asked for and, more importantly, received his share of the $30,000 to $40,000 in cash and jewelry they stole from the Sean Hong Jewelry store. This acceptance of and control over the robbery proceeds supported a major participant finding. (People v. Mitchell (2022) 81 Cal.App.5th 575, 591.)

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Mounsaveng left town after the murder and eventually went to Minnesota. He flashed a roll of $100 bills, carried fake identification, presented that fake identification when he was arrested, and tried to escape as he was being returned to Fresno for trial. Generally, giving a false name to a law enforcement officer investigating a crime supports an inference of consciousness of guilt. (People v. Watkins (2012) 55 Cal.4th 999, 1028; People v. Geier (2007) 41 Cal.4th 555, 589, overruled on other grounds as explained in People v. Seumanu (2015) 61 Cal.4th 1293, 1320.) In addition, an escape from custody pending trial is also relevant evidence of consciousness of guilt. (People v. Carrasco (2014) 59 Cal.4th 924, 963; People v. Pettigrew (2021) 62 Cal.App.5th 477, 497–498.)

We thus find Mounsaveng was a major, willing, and active participant in the Sean Hong Jewelry store robbery and the murder of Song.

C. Clark and the “Reckless Indifference” Factors Clark held that reckless indifference to human life “encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions.” (Clark, supra, 63 Cal.4th at p. 617.)

Reckless indifference “has a subjective and an objective element. [Citation.] As to the subjective element, ‘[t]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed,’ and he or she must consciously disregard ‘the significant risk of death his or her actions create.’ [Citations.] As to the objective element, ‘ “[t]he risk [of death] must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him [or her], its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.” ’ [Citations.] ‘Awareness of no more than the foreseeable risk of death inherent in any [violent felony] is insufficient’ to establish reckless indifference to human life; ‘only knowingly creating

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a “grave risk of death” ’ satisfies the statutory requirement. [Citation.] Notably, ‘the fact a participant [or planner of] an armed robbery could anticipate lethal force might be used’ is not sufficient to establish reckless indifference to human life.” (Scoggins, supra, 9 Cal.5th at p. 677.)

“[P]articipation in a ‘ “garden-variety armed robbery,” ’ i.e., one in which the only factor supporting a reckless indifference finding is that a participant was armed with a gun, is insufficient without more to establish reckless indifference.” (Emanuel, supra, 17 Cal.5th at p. 884; Scoggins, supra, 9 Cal.5th at p. 682.)

“We analyze the totality of the circumstances to determine whether [the defendant] acted with reckless indifference to human life. Relevant factors include: Did the defendant use or know that a gun would be used during the felony? How many weapons were ultimately used? Was the defendant physically present at the crime? Did he or she have the opportunity to restrain the crime or aid the victim? What was the duration of the interaction between the perpetrators of the felony and the victims? What was the defendant’s knowledge of his or her confederate’s propensity for violence or likelihood of using lethal force? What efforts did the defendant make to minimize the risks of violence during the felony?” (Scoggins, supra, 9 Cal.5th at p. 677, citing Clark, supra, 63 Cal.4th at pp. 618–623.)

As in Banks, Clark held that no one of these considerations “ ‘is necessary, nor is any one of them necessarily sufficient.’ ” (Clark, supra, 63 Cal.4th at p. 618.) “Because the major participant and reckless indifference elements often ‘ “significantly overlap” ’ [citations], this list of factors also overlap[s] with those we had identified in connection with the major participation inquiry in Banks.” (Strong, supra, 13 Cal.5th at p. 706.)

1. Analysis

In reviewing the Clark factors in this case, there is significant overlap between the major participant and reckless indifference factors. Mounsaveng was an active partner when he committed robberies with Sivongxxay over six months. Mounsaveng knew

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from these prior robberies what they would do—each would possess and brandish a firearm, remain inside the store during the entirety of each robbery, and use violence against unresisting victims beyond simply pulling a gun and demanding money and jewelry.

When Mounsaveng entered the Sean Hong Jewelry store, he knew that Sivongxxay possessed a gun and engaged in gratuitous acts of violence against unresisting victims in their prior robberies. Mounsaveng began the Sean Hong Jewelry store robbery by pulling his own gun and demanding money and gold. Mounsaveng did not simply smash a display case and take jewelry. Instead, he grabbed Song’s wife by her hair and dragged her into the back room where the safe was located. When Sivongxxay struggled with Song, Mounsaveng used his gun to beat Song in the head. After Sivongxxay told Mounsaveng to shoot, Mounsaveng walked closer to where they were struggling and realized Sivongxxay had dropped his gun. Mounsaveng picked up the gun, allowed Sivongxxay to take back his gun, stayed in the store with his gun pointed at the area where Sivongxxay was still struggling with Song, and he remained there when Sivongxxay fatally shot Song.

In his supplemental letter brief, Mounsaveng asserts that after the amendments enacted by Senate Bill 1437, the prosecution must prove that an aider and abettor acted with the intent to kill in order to find that person acted with reckless indifference to human life. Mounsaveng asserts he only intended to commit a robbery, there was a fight that got out of hand, and he did not aid and abet an execution-style murder with the intent to kill.

Section 1437 amended the felony murder rule to ensure that murder liability is not imposed on a person “ ‘who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.’ ” (People v. Lewis (2021) 11 Cal.5th 952, 959, italics added.) At the section 1172.6 evidentiary hearing, the trial court was not required to find Mounsaveng

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had the intent to kill Song to find he was a major participant who acted with reckless indifference to human life. The amended statute defines murder liability in the disjunctive “or” and does not require evidence of the petitioner’s intent to kill, plus evidence that the petitioner was a major participant who acted with reckless indifference.

Mounsaveng next argues the People failed to prove beyond a reasonable doubt that he possessed a loaded gun during all the robberies, and the absence of such evidence meant he could not have acted with reckless indifference since he lacked the means to kill. As explained above, however, Mounsaveng’s duress defense was partially based on his claim that Sivongxxay or one of his associates always gave him an unloaded gun before each robbery, threatened to harm him if he failed to commit the crime, and he had no ability to resist their threats since he only had an unloaded gun. Mounsaveng’s duress defense was properly rejected. Moreover, even if his own weapon may have been unloaded, Mounsaveng possessed a loaded gun in the Sean Hong Jewelry store when he picked up Sivongxxay’s weapon. He had the opportunity to leave the store but did nothing to assist the victims. Instead, he allowed Sivongxxay to take back the gun, and remained in the store until Song was shot.

Mounsaveng also argues that while defendants used the same procedure for each robbery, they never killed anyone before Sivongxxay “unexpectedly” shot Song, and that showed Mounsaveng’s actions did not knowingly created a grave risk of death. While they never shot or killed anyone during the prior robberies, both defendants engaged in their own acts of violence against unresisting victims. Mounsaveng thus knew Sivongxxay was capable of again engaging in violence, especially when Song tried to resist.

Mounsaveng further argues he did not act with reckless indifference based on the trial court’s findings at the conclusion of the joint bench trial, when the court described what was depicted on the store’s video camera. Mounsaveng asserts the trial court found that based on the video, he was on the opposite side of the store from Sivongxxay’s

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location when the gunshots were fired. Based on this alleged finding, Mounsaveng argues he had no apparent ability to stop Sivongxxay or aid Song because he feared for his own life if he failed to commit the robbery with Sivongxxay.

The trial evidence was that the surveillance video did not show Sivongxxay actually shoot Song but three shots were audible. At the conclusion of the joint bench trial, the trial court found beyond a reasonable doubt that Sivongxxay was guilty of first degree murder and the felony murder special circumstance, based on his admission that he was the actual killer, and the court also relied on the store’s surveillance video.

“You reach a point in the tape where the first of three shots can be heard. When I say the first of three, there are three shots, one and then two others more rapid, all – in the confusion of all the banging and clanging and various sounds, those three are of an identical nature in my opinion and are clearly the shots.

“But in reaching this factual determination, Mr. Mounsaveng is clearly in [the] frame and across the room with the female victim when the first shot is fired. He also appears to react to that shot by turning back towards the employee area of the store with his gun in his hand, and then moves out of [the] frame when the next two shots are fired. [¶] This, coupled with the voluntary, knowing and intelligent waiver and statement by Mr. Sivongxxay to Detective Wells that he shot the victim, establishes in my mind clearly without reasonable doubt that [Sivongxxay] fired the shots.” The trial court made these findings to support its conclusion that Sivongxxay shot and killed Song, and that Mounsaveng was not the shooter. The court concluded that since the surveillance video showed Mounsaveng was on the opposite side of the store with Song’s wife when the fatal shots are heard on the audio, he could not have fired the fatal shots. The court had already rejected Mounsaveng’s duress defense. The court’s findings on this point did not amount to an express or implied finding that Mounsaveng had no apparent ability to stop Sivongxxay, or that he could not have acted with reckless indifference. Instead, once the court determined Sivongxxay was the actual killer, it separately found Mounsaveng was guilty of first degree murder as a major participant who acted with reckless indifference to human life.

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D. Conclusion The trial court’s findings that Mounsaveng was a major, active, and willing participant who acted with reckless indifference to human life during the crimes at the Sean Hong Jewelry store is supported by substantial evidence, and the court properly denied his section 1172.6 petition.

DISPOSITION

Mounsaveng’s motion for appointment of a new appellate counsel is denied. The trial court’s order of January 17, 2025, denying Mounsaveng’s section 1172.6 petition for resentencing, is affirmed.